When the defendant in detinue suggests that the plaintiff's claim is based on a mortgage, and requires the ascertainment of the amount of the mortgage debt, as provided by section 3789 of the Code, the burden is, of course, on the defendant to show the existence of the mortgage claim. Thereupon, the action assumes the character, quoad hoc of an action on a note or other indebtedness, and the burden devolves upon the plaintiff to show the amount of the indebtedness under his mortgage. This he may do by showing a note, or a recital in the mortgage, or an account stated, or by independent evidence. When a debt is thus shown prima facie, the burden devolves on the defendant to show that it has been paid or discharged in whole or in part, or to make any other defense authorized by the statute. Code, § 3791.
Standing alone, the several instructions given to the jury at the instance of defendant might well have been misleading as to the burden of proof resting on plaintiff and defendant respectively, and also as to the extent of defendant's obligation as to the whole indebtedness secured. But their ambiguity and misleading tendency are, we think, entirely removed by the charges given for plaintiff, as well as by the general oral charge. The jury could not have misunderstood the law applicable to the case, and reversible error cannot be found in the giving of the charges complained of.
While an appeal from the ruling of the trial court on a motion for new trial will not be entertained unless the record proper shows a judgment thereon (Clements v. Hodgens, 210 Ala. 486,98 So. 467), a recital in the bill of exceptions of the motion, the ruling of the court, and an exception thereto by the party adversely affected, is sufficient to present the question for review on appeal from the judgment on the verdict (Dees v. Lindsey Mill Co., 210 Ala. 183, 97 So. 647).
We have given thorough consideration to the evidence as to the existence of a balance due on the mortgage indebtedness. It is in conflict, and it may be that the weight of the evidence favors the claims of plaintiff; but we are unable to affirm that the weight of the evidence is so overwhelming in favor of plaintiff as to show that the verdict for defendant is palpably wrong. We must therefore decline to reverse the ruling of the trial court sustaining the verdict of the jury. *Page 461
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and MILLER, JJ., concur.