
    Matkin v. Marx.
    
      Statutory Action in nature of Ejectment.
    
    1, When defendant may not set up paramount title in third person In ejectment, or in the statutory action in the nature thereof, where plaintiff and defendant claim title from a common source, the defendant is precluded from setting up a paramount title in a third person.
    2 Presumption in favor of rulings of primary court. — On appeal, the rulings of the primary court must be presumed to be free from error, unless the contrary is affirmatively shown.
    3. Ejectment by purchaser at mortgage foreclosure; right of defendant 
      
      to have amount of mortgage debt ascertained — A. statutory action in the nature of ejectment by the purchaser at a mortgage foreclosure is not an action by a “mortgagee or his assignee,” within the meaning of the statute (Code, § 2707), which provides that, in such action against the mortgagor, or any one holding under him, the defendant may have the jury ascertain the amount due on the mortgage debt, and on payment thereof, with interest and the costs, a writ of possession shall not issue. The defendant in an action by the purchaser at a foreclosure sale is not entitled to the benefit of said statute.
    4. General charge on evidence —When any material fact lies in inference from other facts in proof, or if different tendencies of the proof are developed, from which different conclusions mightbe drawn by the jury, the general charge in favor of either party should not be given.
    Appeal from tbe Circuit Court of Marengo.
    Tried before tbe Hon. ¥i. E. ClaRKe.
    GL B. Johnston, and John C. Anderson, for appellant.
    G-eo. W. Tayloe, contra.
    
   THOEINGTON, J.

Appellee brought suit against appellant to recover possession of certain real property described in tbe complaint, tbe suit being a real action, under tbe Code, in tbe nature of ejectment. Tbe plaintiff’s title was derived tbrougb Newbouse Bros., to wbom E. T. Wal-ston and wife mortgaged tbe property on tbe 1st day of February, 1887, tbe mortgagors being tben in possession. Tbe mortgage was executed and acknowledged in tbe form requisite to convey tbe homestead. After tbe law day of tbe mortgage, tbe mortgagees sold tbe property pursuant to tbe power of sale, and appellee became the purchaser, and received a deed in due form from the mortgagees. No question is made as to tbe regularity of tbe sale. E. T. Walston, tbe mortgagor, died in February, 1889. In October, 1889, tbe property in controversy was set apart, by proceedings bad in tbe Probate Court of Marengo county for that purpose, to Mrs. Magnolia Walston, tbe widow of tbe mortgagor, as her homestead, and tbe mortgage sale was made in December, 1889. While Mrs. Walston was occupying tbe property as her homestead, as aforesaid, appellant went into possession as her tenant, and was so bolding .when this suit was instituted.

Tbe defendant’s pleas were tbe general issue; that tbe mortgage debt was paid before the commencement of tbe suit; and that tbe legal title to tbe property was in third persons, and not in the plaintiff, to-wit., that Walston, at the time of mortgaging lot 14 to Newbouse Bros., bad no deed or legal title thereto, and has never acquired any since; and that, prior to the mortgage to Newhouse Bros., Walston bad conveyed lot 10 by a deed of trust to Gr. B. Johnston, as trustee for the Commercial Bank of Selma, which deed of trust or mortgage was still of force, the debt secured thereby never having been paid; that the legal title to lot 14 was in Samuel Gr. Woolf and his sisters, and that the legal title to lot 16 was in said Johnston, as trustee. The pleas do not in any wise attempt to connect the defendant with either of these outstanding titles. The defendant also set up by plea that the property had been set apart to Mrs. Walston, the widow of the mortgagor, as her homestead, and that, although the mortgage conveyed the homestead, it was merely to secure the debt described in the mortgage, and that such debt had been paid; and that he, the defendant, held the property as Mrs. Walston’s tenant.

Plaintiff demurred to the special pleas, and his demurrers were sustained by the court; but afterwards the demurrer to the plea of payment was reconsidered and overruled; and a motion of the plaintiff to strike said plea from the file was likewise overruled.

The defendant made various offers of proof to show the alleged outstanding title to both lots, and also the proceedings by which the property had been set apart to Mrs. Wal-ston as her homestead, all of which proof, on the plaintiff’s objection, was excluded; and the defendant excepted.

After the cause had been submitted to the jury, and plaintiff had rested his case, the defendant suggested upon the record, as the bill of exceptions states, that he was the tenant of Mrs. Magnolia Walston, who holds under her deceased husband, the mortgagor, and moved the court to “intimate” to the jury to ascertain the amount due under the mortgage “which forms a part of the title under which the plaintiff claims.” On objection of the plaintiff, the court refused to allow the motion to be filed, and the defendant excepted.

The judgment entry recites that “after issue joined, and after the evidence of the plaintiff was closed, the defendant filed a motion in writing to substitute Mrs. Magnolia Wal-ston, as landlord, as defendant in his stead.” The plaintiff demurred to the motion, and the demurrer was sustained. Neither the motion itself nor the- grounds of demurrer are set out in the record.

The settled rule in this court is that a defendant in ejectment, or1 the statutory action in the nature of ejectment, may set up au outstanding paramount title in a third person, unless the defendant is a mere trespasser, or lie and the plaintiff claim under the same person. — Stephenson v. Reeves, 92 Ala. 582.

It is clear from the statement of facts, as above set forth, that both the plaintiff and the defendant claim whatever title and right they have from a common source, to-wit, from E. T. Walston, — the plaintiff’s title being the deed received by him on his purchase under the mortgage, aud the defendant’s rights being based on his tenancy under Mrs. Walston, to whom the property was set apart, as the widow of E. T. Walston, as her homestead. The defendant, therefore, is not in a position to plead that the title to the property sued for was not in E. T. Walston, but in third parties. The demurrer to the pleas attempting to set up that defense was properly sustained, and all testimony offered by the defendant touching that question was properly excluded. In order to exclude any inference to the contrary, we may add, on this point, that if the defendant had not been precluded from setting up an outstanding title with which he was connected, that defense could have been open to him under the plea of the general issue; no special plea would have been necessary in order to set up the defense.

The question whether the court erred in sustaining the demurrer of the plaintiff to the motion of the defendant to have his landlord substituted in his place as defendant is very obscurely raised by the record. Neither the motion itself nor the demurrer thereto being set out in the record, we can not see that the court erred, but must presume in favor qf the correctness of the ruling. Appellant having-failed to make it appear affirmatively that there was reversible error in the ruling of the court on this motion, his assignment of error thereon can avail him nothing.

The refusal of the court, on defendant’s motion, to instruct the jury to ascertain the amount due on the mortgage debt, on the theory that the mortgage constituted part of the plaintiff’s title, and that the defendant held under one of the mortgagors, Mrs. Walston, was not error. The statute (Code, 1886, § 2707,) limits the right of a defendant to have the jury ascertain the amount of the mortgage debt to actions by a mortgagee, or his assignee, against the mortgagor, or any one holding under him; and provides that if within thirty days after the rendition of judgment the defendant shall pay to the plaintiff, or to the clerk for his use, such debt, interest and the costs, then a writ of possession must not issue, <&c. The mortgage referred to in defendant’s motion baying been foreclosed, under tbe power of sale, and tbe plaintiff baying purchased and received a deed under sucb sale, tbis is not an action by a mortgagee, or bis assignee, witbin tbe meaning of tbe statute. Tbe plaintiff, by sucb purchase, did not become tbe assignee of the mortgage, but the owner of tbe land, at least to tbe extent that the mortgagor bad title thereto. He sues in tbis action, not as a mortgagee, or an assignee of a mortgagee, but as tbe owner of tbe land. — Sanders v. Blackwell & Cassady, 86 Ala. 246.

• Tbe question of payment is only material under tbe defendant’s plea that the mortgage was paid in full before tbe commencement of tbe suit; section 1870 of tbe Code making sucb a payment operate as a divestiture of tbe title passing by tbe mortgage. Tbe demurrer to that plea having been overruled, tbe issue rvas before tbe jury, and much testimony was offered by both "parties. Tbe proof on tbis subject took a wide range; Walston,in addition to tbe mortgage debt, having carried a general merchandise account for several years with Newhouse Bros., tbe mortgagees, during which time there were many debits and credits. From tbe latter it appears that tbe mortgage debt and general account were not kept separate and distinct from each other, but that from time to time a general balance was ascertained and a new note given, and for part of tbe debt new security was taken in the form of a mortgage on personalty. While there was no real conflict in tbe testimony, there were inferences to be drawn by the jury as to whether certain credits were applied to tbe general account or to tbe mortgage debt, by which the latter was paid in full, and also whether tbe additional security taken was intended to be in lieu of tbe original mortgage debt, and by which it was discharged. While tbe giving of a new note is to be regarded jjrima facie as only collateral or additional security, and notwithstanding tbe testimony of one of tbe plaintiffs in tbis case that tbe new notes and mortgages were in fact so taken, it was a question of intention, and it was for tbe jury to determine from all tbe proof whether there was an implied agreement that tbe new notes and mortgages were taken in payment of tbe original debt. — Keel v. Larkin, 72 Ala. 493. The court, with tbis state of tbe proof, at plaintiff’s request, gave tbe general affirmative charge.

It lias been frequently declared that when any material fact lies in inference from other facts in proof, or if different tendencies of tbe proof are developed from which different conclusions might be drawn by: the jury, tbe general charge in favor of either party should not be given. — Hissong v. Richmond & Danville Railroad Co., 91 Ala, 514.

In giving the general affirmative charge for the plaintiff the Circuit Court erred; and its judgment is accordingly-reversed, and the cause remanded.

Eeversed and remanded.  