[Wheless v. Rhodes.] The vertence or ignorance it was omitted-is not material. reason. Affirmed. Wheless v. Rhodes. Statutory Detinue, by Mortgagor against Mortgagee. 1. To what witness or party may testify.—Declarations made attending acts, and explanatory of them, are facts to which a witness or a party may testify; but uncommunicated intentions must be determined by the jury, and are not the subject of proof by a witness or party. 2. Payment of mortgage debt; effect on mortgagee's title.-Under a mortgage of chattels, when the secured debt is paid, the mortgagee's title is at an end, since there can be no mortgage where there is no debt; but, if the mortgage is of lands, this rule does not prevail at law. 3. Charges asked, but not shown to be in writing.—Charges asked and refused will not be considered on error, unless they are shown to have been asked in writing (Code, § 3109.) APPEAL from the Circuit Court of Tallapoosa. Tried before the Hon. JAMES E. COBB. This action was brought by Joseph W. Rhodes, against John Wheless, to recover a set of mechanic's tools, particularly described in the complaint, with damages for their detention; and was commenced on the 5th June, 1874. The defendant pleaded specially-1st, that the plaintiff had conveyed the tools to him, with other personal chattels, by mortgage particularly described, and afterwards, the mortgage debt not being paid at maturity, had delivered the possession of the chattels to him; 2d, that the mortgage debt was unpaid, and he held possession under the mortgage. The record does not show that any objection was interposed to either of these pleas, though the judgment-entry only recites that the cause was tried on issue joined. The mortgage set out in the plea, which was also introduced as evidence on the trial, was dated the 15th August, 1873, and purported to be given to secure the payment of a note for $45, which was due and payable on the 1st November, 1873. The defendant's evidence tended to show that, in December, 1873, this mortgage debt being due and unpaid, the plaintiff carried [Wheless v. Rhodes.] the set of tools to his house, and delivered them to him under the mortgage. There had been prior transactions between the parties, and several mortgages had been given, which were afterwards paid or settled. On a settlement had between the parties on the 11th February, 1873, it was proved that the plaintiff had paid $50 to the defendant; and the defendant introduced evidence tending to show that this money was paid to him, as the agent of one Hollingsworth, for the rent of a tract of land which the plaintiff had cultivated during the year 1872, "though there was no evidence that said Hollingsworth had any title to the land, or any right to claim rent for it." "The plaintiff then proposed to show, by his own testimony, that said paid by him at the time of said settlement, was intended by him to be paid on the mortgage debt then due and unpaid;" and the court allowed him to testify, against the objection of the defendant, "that he did not intend to pay the rent of the Hollingsworth place, but intended to have the amount appropriated by the defendant as a payment on the mortgage. the admission of this evidence an exception was reserved by the defendant. "The plaintiff proposed to show also, by his own testimony, that said mortgage was given for a usurious consideration; and he testified, against the objection of the defendant, that the consideration of said mortgage was $45, less twentyfive per-cent. interest included in it." The defendant excepted to the admission of this evidence, and also to a charge given by the court ex mero motu, instructing the jury that, in ascertaining the amount due from the plaintiff to the defendant, they must exclude all usurious interest. Exceptions were reserved by the defendant to several other rulings of the court, which require no notice; and all the rulings excepted to are now assigned as error. W. D. BULGER, for appellant. W. II. BARNES, contra. Το STONE, J.-In this case, certain payments were shown to have been made by Rhodes to Wheless, in February, 1874. Wheless testified, that Rhodes had rented lands from him as the agent of Hollingsworth, and had cultivated them during the year 1873. He further testified, that part of the money so paid to him was paid and applied in liquidation of Rhodes' indebtedness to Hollingsworth for said rent. There had been other indebtedness from Rhodes to Wheless, and the contention was, on which of these claims the payment should be applied. If applied to the claim for rent, the implications are, that this would leave an unpaid balance due on the mortgage from [Martin v. Hall.] Rhodes to Wheless. The plaintiff, Rhodes, was allowed to testify, against the objection and exception of the defendant," that he did not intend to pay the rent of the Hollingsworth place, but intended to have the amount appropriated by the defendant as a payment of the mortgage to Wheless." In this, the Circuit Court erred. In a contest such as this, which includes inquiry into the character, intent, motive, and purpose of the parties to the suit, neither party will be allowed to testify as a witness to any secret or uncommunicated intention or purpose, he may have had when he did the act. Facts may be laid before the jury, and verbal or written intercommunications are facts. Declarations made, attending acts, and explanatory of them, are facts. But uncommunicated intentions are not the subject of proof. The jury must ascertain these from the facts and circumstances.-Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Sternau v. Marks, Ib. 608; Herring v. Skaggs, 62 Ala. 180. The Circuit Court did not err in receiving evidence of the usury. It tended to show the actual debt was less than the papers imported. The mortgage being of chattels, if the mortgage debt was paid, the mortgagee's title was at an end. Where there is no debt, there is no mortgage.-Harrison v. Hicks, 1 Por. 423; Morrison v. Judge, 14 Ala. 182; Geron v. Geron, 15 Ala. 558. This rule does not obtain, in courts of law, as to lands. The charges asked are not shown to have been in writing, and we can not consider them. Reversed and remanded. Martin v. Hall. Motion for Summary Judgment against Constable and Sureties on his Official Bond. 1. Defects in legal process; when not available to officer for failure to execute. When an execution, or venditioni exponas, is issued by competent authority, and is regular on its face, a sheriff or constable, into whose hands it may come to be executed, "is justified in the execution of the same, whatever may be the defect in the proceeding on which it was issued" (Code, § 3041); consequently, he can not set up such defects in excuse for his failure to execute the process. 2. Judgment in attachment case; how affected by irregularities in proceedings.-Defects in the affidavit for an attachment, and irregularities in the proceedings, which would prove fatal on error or appeal, do not render the judgment void; and it cannot be collaterally impeached on account of such defects and irregularities. [Martin v. Hall.] APPEAL from the Circuit Court of Jackson. This was a motion by William B. Martin, for a summary judgment against Thomas C. Hall and the sureties on his official bond as constable, "on account of the failure of said Hall to make the money on an execution in his hands as constable, in favor of said W. B. Martin, and against Jacob Houst, issued on the 2d May, 1874, by J. J. St. Clair, justice of the peace, for $24, besides $5 costs of suit; and which, by the use of due diligence, said Hall could have collected;" was commenced before a justice of the peace, and removed by certiorari into the Circuit Court. In the Circuit Court, the plaintiff filed a complaint, claiming $28, with interest from the 2d May, 1874, and five per cent. damages on the same, for the failure of said Hall, as constable, "to execute an order of sale issued on a judgment obtained before J. J. St. Clair, a justice of the peace," &c. The order of sale was in these words: "State of Alabama, Jackson County. To any constable of said county: Whereas W. B. Martin sued out an attachment against the estate of Jacob Houts, before me, J. J. St. Clair, a justice of the peace for said county, which was duly returned levied on one bag of cotton; and the said W. B. Martin did, on the 4th day of March, 1874, obtain a judgment against said Houts, for the sum of $25; and it appearing to the satisfaction of the court that said cotton was liable for the satisfaction of said debt: These are therefore to command you to sell said cotton, or so much thereof as will be of value sufficient to satisfy said complaint and costs. Given under my hand," &c. On the trial, as the bill of exceptions shows, the plaintiff offered in evidence the proceedings in his said attachment suit against Jacob Houts, showing the attachment, with affidavit and bond, judgment, and order of sale; "which said papers, and each of them, the defendants moved to exclude from the jury as evidence, because said judgment and proceedings are void, and imposed no legal duty on the constable to execute them; 1st, because the affidavit for the attachment did not state the amount of money due to the plaintiff; 2d, because said affidavit did not aver that the attachment was not sued out for the purpose of vexing or harassing the defendant; 3d, because there was no evidence showing that the defendant had any notice of the levy or the attachment proceedings." The court sustained this motion; and the plaintiff excepted, and took a nonsuit, which he now moves to set aside, assigning this ruling as error. ROBINSON & BROWN, for appellant. HUMES & GORDON, contra. [Burkett v. Munford.] SOMERVILLE, J.-The execution issued on the judgment against Houts in the justice's court, and the other papers connected with the attachment suit brought in that court by the appellant,. Martin, were improperly excluded as evidence. Where such process is regular on its face, as the execution here was, and is issued by the competent authority, a sheriff or constable is "justified in the execution of the same, whatever may be the defect in the proceeding on which it was issued.”—Code, 1876, § 3041. The attachment proceeding was full of defects, which would have proved fatal in a direct proceeding; but the judgment was not absolutely void, and cannot, therefore, be collaterally assailed. -Barron v. Tart, 18 Ala. 668. It was the duty of the constable to execute the process, in the absence of some step taken by the defendants to arrest it, by certiorari, appeal, or otherwise. This was a motion against the constable and his sureties, for failure to make the money on the execution, which, it was alleged, he could have done by the use of due diligence. The court erred in its ruling; and the judgment is reversed, and the cause remanded. Burkett v. Munford. Bill in Equity to enforce Vendor's Lien on Land; Cross- 1. Averment of offer or readiness and willingness to convey; when necessary. When the payment of the purchase-money, and the exccuton of a conveyance, are intended to be concurrent and contemporaneous acts, either party, seeking a specific performance, must aver his readiness and ability to perform at the appointed time; but, when the vendor executes a bond conditioned to make title generally, and the purchaser gives his note or notes payable on a day certain, the payment of the purchase-money is not dependent on the making of title; and in a bill by the vendor to enforce the payment of the purchase-money, it is not necessary that he should aver an offer on his part to convey, or his readiness and willingness to make title. 2. Rescission of contract, on account of defect in title.-When a purchaser of lands has been placed in possession under the contract, and retains it, the contract being free from fraud, a court of equity will not, at his instance, rescind the contract on account of a defect in the vendor's title; unless it is clearly shown that injury must result to him from an abandonment of the possession,-as, where he has paid a part of the purchase-money, or has made valuable improvements, and the vendor is insolvent. 3. Same; averment of vendor's insolvency.-An averment, in a bill by the purchaser, that the vendor “has not property in Alabama, or elsewhere, within the knowledge of complainant, except his interest in the 70 423 115 312 70 423 117 541 |