Culbreath v. Walker

98 So. 187, 210 Ala. 368, 1923 Ala. LEXIS 21

Opinion

SOMERVILLE, J.

Under the pleadings in this.case, the only proper issue was payment of the mortgage debt, in whole or in part. The trial court allowed to respondents full credit for all the payments they claimed to have made, and decreed for complainant for the balance with interest. The theory of appellants seems to be that there was such a release of the.debt as to work its discharge, notwithstanding a large balance remained unpaid. We are not reasonably satisfied by the testimony that complainant ever surrendered the mortgage and note to respondents, or that she indorsed on them “paid” or “satisfied.” But, in any event, the answer does not set up a release or satisfaction in writing which could have effect under Oode, § 3973, according to the intention of the parties, and hence respondents could take nothing by proof of such a release.

Nor does the answer offer any outside debt as a set-off to the mortgage debt, and a general accounting was not available to respondents.

These considerations lead to the conclusion that the decree of the trial court is free from error and should be affirmed.

Affirmed.

ANDERSON, C. X, and THOMAS and BOUEDIN, XI., concur.