BRICKELL, J.
The condition of the mortgage, under which appellant claims the right of entry and possession of the premises in controversy, is, that if the mortgagor made default in the payment of either of the bills of exchange, of which appellant was his accommodation drawer or indorser, and he should be sued to judgment thereon, then he should have the right to enter into possession and make sale of the premises mortgaged. To prove default, and the happening of the event on which the right of entry and possession depended, the appellant offered in evidence transcripts of judgments rendered against him as indorser, and the mortgagor as drawer, of one of the bills of exchange, payment of which was secured by the mortgage. These judgments were rendered in 1862, in the county court of Montgomery county. The appellee objected to the admission in evidence of these judgments, and the objection was sustained.'
[520]*5201. The transcript of the record of the judgments was properly certified by the clerk of the present city court of Montgomery, which has succeeded to the jurisdiction of the former county court. He is the legal custodian of the records of that court, authorized to certify them,- and to his certificate of them the verity should be accorded, which is accorded to his certificate of the records of the present city court.
2. The judgments were not void. They were the judgments of a court of competent jurisdiction, rendered on the appearance, and without objection from the mortgagor or mortgagee. In Randolph v. Baldwin (41 Ala. 305), it was decided, that the court in which these judgments were rendered, was constitutionally established ; and that the ordinance of the convention of 1865 (Ordinance No. 26) cured any objection which could be taken to its judgments because of their rendition while the State was in hostile relations to the federal government. Whether such is the effect of that ordinance, is not now a question of practical importance. The supreme court of the United States, in the recent case of Horn v. Lockhart (17 Wall. 570), in passing upon judicial proceedings had in a court of this State during the recent war, declared their validity and efficacy, when they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution. In Tarver v. Tankersley, at the present term, this court announced its determination to follow the rule thus prescribed. The rendition of these judgments fixed the- liability of the mortgagor and of the mortgagee, and gave rise to the contingency, on the happening of which depended the fight of entry upon, and possession of the mortgaged premises. The court below, therefore, erred in not receiving in evidence the transcripts of these judgments.
3. If the bill of exchange, on-which the judgments were rendered, was misdescribed in the mortgage, or the relation of the parties to it was not properly stated, parol evidence was admissible, to show that it was the debt intended to be secured. Graham v. Lockhart, 8 Ala. 5; Posey & Coffee v. Decatur Bank, 12 Ala. 802; Morrison v. Taylor, 21 Ala. 779; Donald & Co. v. Hewitt, 33 Ala. 534.
The circuit court erred in its rulings, and the judgment of nonsuit is set aside, and the cause remanded.
Free access — add to your briefcase to read the full text and ask questions with AI