
    Davis v. Anderson, et al.
    
    
      Ejectment.
    
    (Decided Dec. 16, 1909.
    50 South. 1002.)
    1. Mortgages; Payment; Effect. — Since section 4899, Code 1907, provides that the payment of the mortgage debt divests the title passing by the mortgage, in ejectment by one claiming under a senior mortgage against one claiming under a junior mortgage, evidence may be introduced that the senior mortgage had been paid before foreclosure.
    2. Appeal and Error; Harmless Error; Evidence. — Where the court erroneously sustained objections to evidence, and afterwards reverses its rulings and offers the party the opportunity of introducing such evidence, any former error is cured.
    3. Evidence; Similar Facts; Admissibility. — The action being statutory ejectment by a senior mortgagee against a junior mortgagee, a crop lien mortgage executed by the mortgagor to the senior mortgagee having no relation to the land is properly excluded.
    4. Same; Admissions of Agent; Existence of Agency; Relation.— Where a witness testified that the bookkeeper of the mortgagee sent him and another person to get a new mortgage from the mortgagor and instructed them what assurance • to give the mortgagor to procure the execution of a new mortgage, and the testimony of the mortgagee that he gave his bookkeeper instructions what to do about it, proved the agency so as to render competent what took place when the witness and such third person called upon the mortgagor.
    5. Witnesses; Right of Party to Discredit Oion Witness. — A party may not for the purpose of discrediting his own witness inquire of the witness whether he had had a conversation relative to the matter testified about with a third person.
    6. Same; Cross Examination; Scope. — The extent to which a party will be allowed to go on his cross examination of a witness as to matters testing the accuracy of the witness’ statement rests largely in the discretion of the trial court.
    Appeal from Clark Circuit Court.
    Heard before Hon. John T. Lackland.
    Ejectment by Thomas W. Davis against Ollie Anderson and another. Judgment for defendants and plaintiff appeals.
    Affirmed.
    Thomas W. Davis, pro se.
    The mortgage offered in evidence by defendant John Kimbrough from Anderson and wife to himself should have been excluded because it shows that a. sale and transfer of same had been made to Kimbrough & Company. While an attempt to avoid the transfer was made by running a pen through it, this did not re-convey the title to Kimbrough. — Garter v. Smith, 131 Ala. 117. Next, the mortgage was executed subsequent to the law day and default- in the payment of the mortgage made to Boyles in 1895, and which was foreclosed with Davis purchasing at the sale. — 54 Ala. 309; 75 Ala. 216; 98 Ala. 310. The defendant is estopped from setting up superior outstanding title, and hence, the deed from Kimbrough to Gunn should not have been admitted.- — 76 Ala. 204; Jones on Mortgages, Sec. 719. It was' irrelevant on further ground that it was executed subsequent to the law day and default in payment of the mortgage from Anderson to Boyles.— 65 Ala. 371; 86 Ala. 245; 92 Ala. 582; 37 Ala. 358; 45 Ala. 482. For the same reason the deed offered by Kimbrough from Gunn to himself, should have been excluded.
    Quincby W. Tucker, for appellee.
    The payment of the mortgage debt whether as to real or personal property divests all title passing by the mortgage. — Foster, et al. v. Smith, 104 Ala. 248; Sec. 4899, Code 1907. Counsel discuss other assignments of error, but without citation of authority.
   SIMPSON, J.

This, is an action of statutory ejectment by the appellant against appellee. Both parties trace their title to the common source — Ollie Anderson. The plaintiff’s title ivas , through a mortgage from said Ollie Anderson and wife to N. B. Boyles, dated September 7, 1895, and a deed from said Boyles, the mortgagee, to plaintiff, dated January 10, 1906; and the defendants claimed under a mortgage by said Ollie Anderson and wife to John Kimbrough, dated May 6, 1904, and a deed (reciting a foreclosure) from said John Kimbrough to-Norman Gunn, dated December 28, 1905, and deed from Gunn to said Kimbrough, dated January 22,. 1906.

After testimony as to the foreclosure of the mortgage from Anderson to Boyles, the purchase by the plaintiff, and the receipt by said Boyles of the amount hid at the foreclosure sale, the defendant Ollie Anderson (who was the tenant of the other defendant, Kimbrough), being examined as a witness for the plaintiff, was asked, on cross-examination by the defendants, whether or not the mortgage to Boyles was paid before the foreclosure. The plaintiff objected to this question, and the overruling of said objection is made the subject of the first assignment of error insisted on. In addition to the fact that no motion was made to exclude the answer to said question, the question was proper, as under the statute the payment of the mortgage debt would divest the title passing by the mortgage, and be a complete defense to an action thereunder for the property. — Code 1907, § 4899; Foster & Rudder v. Smith, 104 Ala. 250, 16 South 61; Bufford v. Raney, 122 Ala. 570, 26 South. 120; Baker v. Burdeshaw, 132 Ala. 169, 31 South. 497; McKinnon v. Lessley, 89 Ala. 627, 8 South. 9.

There was no error in excluding the crop lien mortgages made by said Anderson to said Boyles from 1895 to 1899, inclusive, as they were not shown to have any relation to the mortgage on the'land.

If there was error in sustaining objections to the question by plaintiff to the witness Anderson as to a •conversation between plaintiff and said witness, it was cured by the subsequent action of the court in reversing its ruling and offering to plaintiff the opportunity to introduce said evidence.

There was no error in sustaining the objection to the ■question by the plaintiff to the witness N. B. Boyles “if he did not have a conversation with Ollie Anderson in the presence of Thomas W. Davis in October, 1901, at witness’ store, in reference to amount due on mortgage.” No statement was made showing the relevancy of the testimony sought. Its apparent object was to discredit plaintiff’s own witness, which could not be done.

There was no error in overruling the objections to the introduction by the defendants of the mortgage from Ollie Anderson to John Kimbrough. Said mortgage ■constituted a link in the chain of title set up by the defendants, and the mere fact that it was dated after the maturity of tha ¡mortgage introduced by the plaintiff did not make it inadmissible. There is nothing on the mortgage as copied in the record to show that it had been transferred “by John Kimbrough to J. W. Kimbrough •& Co.,” and the record does not show that any objection was made on that account.

The objection made to the introduction of the foreclosure deed of John Kimbrough to Norman Gunn was because “it seeks to convey the same land embraced in the mortgage made by Anderson to N. B. Boyles in 1894,” which, of course, was no reason for excluding the deed.

There was no error in overruling the objection to the question to the witness Tucker as to “what took place” when witness and one Cammack went to see Anderson. The witness had testified that W. D. Boyles, the bookkeeper to N. B. Boyles, sent him and Cammack to get the new mortgage from Anderson, and instructed them what assurance to give if Anderson would execute the new mortgage, and N. B. Boylés had testified that he gave instructions to W. D. Boyles what to do about it. No further evidence of agency was needed.

The question to the witness Tucker as to whether a certain clause in the mortgage was written by the same machine as the other parts of the instrument was not subject to the objections made.

The receipt of N. B. Boyles for “$49.34 in full of store a/c to date,” was relevant in connection with the testimony of W. D. Boyles that his account was never less than from $200 to $250, as showing whether said Boyles was accurate in his statement. At any rate, no injury could occur to the plaintiff in this action by- showing that this little account was paid.

As to the questions to the witness N. B. Boyles in regard to his bankruptcy, in addition to the principle that the extent to which a. cross-examination may be carried is largely within the discretion, of the trial court, the matters inquired of were permissible to test the accuracy of the witness’ statements in regard to the nonpayment of the mortgage.

- The alleged discrepancies in tbe statements of witnesses were for tbe consideration of tbe jury, and there was no error in tbe refusal to give tbe general affirmative charge in favor of tbe plaintiff. Tbe judgment of tbe court is affirmed.

Affirmed.

Anderson, McClellan, and Mayfield, JJ., concur.  