Opinion
7 Div. 167.
April 7, 1921. Rehearing Denied May 19, 1921.
Appeal from Circuit Court, Shelby County; E. J. Garrison, Judge.
Richard H. Fries and Henry Upson Sims, both of Birmingham, for appellants.
Where the witness to the instrument has died, it must be proven by competent evidence. Sections 4004 and 4005, Code 1907. The burden was cast upon the complainant to prove ownership. 196 Ala. 645, 70 So. 1; section 3967, Code 1907. A general denial is all that is required, unless the knowledge is prima facie peculiarly in the respondent. 72 So. 127.
W. L. Acuff, of Columbiana, for appellee.
Pleas denying execution must be sworn to, notwithstanding oath is waived. 107 Ala. 272, 18 So. 37; Sims, Chancery Prac. 471. This is also true of pleas denying ownership. 125 Ala. 566, 28 So. 79. There was sufficient consideration shown. 128 Ala. 175, 30 So. 792; 139 Ala. 319, 35 So. 998; Sims, Chancery Prac. 472; 6 Ala. App. 249, 60 So. 744.
The bill in this cause was filed by appellee and sought the foreclosure of a mortgage executed to the Citizens' Bank of Calera, by the bank assigned to one Nichols, and by Nichols assigned to complainant. Defendants pleaded that they — Henson and his wife, whose name appears with his — had not executed the mortgage or the note secured by it, and denied the assignments averred in the bill. Further, they answered, the note and mortgage were without consideration. So far as concerns the first and last of these defenses we feel constrained to find in agreement with the trial court that the note and mortgage in suit were supported by the consideration of money lent. It may be, probably is, true that these instruments were given in bulk renewal of two notes of the previous year. They were nevertheless supported by an adequate consideration. We must also hold that defendants did execute the note and mortgage declared upon. They deny; but their denial is not altogether free of equivocation. On the other hand, the facts of execution and acknowledgment are certified by an officer of the law and supported by the oath of the officer, sworn as a witness in this cause. We are far from feeling that this defense is sustained by clear and convincing proof. Barnett v. Proskauer, 62 Ala. 486; Freeman v. Blount, 172 Ala. 655, 55 So. 293.
As to the defense based upon the denial of the assignments and complainant's alleged failure to prove them, defendants, appellants, proceed upon the theory that these assignments were denied by sworn plea (section 5332 of the Code), and hence that the burden of proving them rested upon complainant (Code, § 3967). Defendants did in their sworn answer deny "each and every allegation" of the bill and did further and more specifically deny that "complainant is a bona fide holder in due course of said note and mortgage"; but a denial of each and every allegation is nothing more than the general issue; it is not a special plea. L. N. R. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Stein v. McGrath, 128 Ala. 175, 30 So. 792. Nor is the averment quoted in the second place, supra, a specific denial, nor indeed a denial in any sort, that the note and mortgage had been assigned; it merely denies the bona fides of complainant's ownership within the meaning of the law merchant. Hence our conclusion that the burden of proving the assignments averred was not by the pleading placed upon the complainant.
No sufficient cause is shown for setting aside the decree under review.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.