One of the defenses relied on in this case is-fraud, alleged to have been practiced on the defendant by the plaintiff, in procuring his signature to the mortgage, which is the title relied on for the recovery of the mule sued for. That defense is permissible in this action, and, if made out, is a comjilete defense to the suit. In other words, if the plaintiff, by misrepresentation of what the paper contained, or by any other fraudulent means, obtained defendant’s signature to a paper he did not intend to sign, and did not-' know he was signing, this is *252fraud in the execution of the instrument, which is available in a court of law; and, if found to exist, destroys the effect of the instrument as evidence of title.—Swift v. Fitzhugh, 9 Por. 39; Morris v. Harvey, 4 Ala. 300 ; Mead v. Steger, 5 Por. 498; Paysant v. Ware, 1 Ala. 160; Dickinson v. Lewis, 34 Ala. 638 ; Davis v. Snider, at the present term. The jury found for defendant, and based the finding expressly on this issue.
At the request of defendant, made in writing, the court charged the jury, that if they believed, from the evidence, that the mortgage offered in evidence was procured by such fraud as is mentioned above, “then their verdict must be, ‘We, the-jury, find that defendant’s signature to the mortgage offered in evidence was obtained by fraudulent representation of the plaintiff to the defendant, and therefore we, the jury, find for the defendant.’” The jury gave their verdict in this form. Now, this is a species of special verdict, and the jury proved by the form of their verdict that they so understood the instruction. In telling the jury that, in one supposed case, they must make a special finding, the Circuit Court erred. If the jury elect to put their verdict in the fornnof a special finding of facts, it is unquestionably their privilege to do so. But it is a mere privilege, or option, which the court has no authority to direct or control. — Cooley’s Const. Lim. 321, -in margin; Underwood v. People, 20 Amer. Rep. 633; s. c., 32 Mich. 1.
The case having been determined on the one issue — fraud in procuring the instrument to be signed — it follows that, no matter what may have been the errors committed in regal’d to the other grounds of defense,' they were errors without injury, and furnish no cause of reversal.—The State v. Brantley, 27 Ala. 44. Inasmuch, however, as questions may arise on another trial, pertaining to each matter of defense, we state that Foster, the plaintiff, should have been allowed to give his full version of what is claimed as a tender. We can not know that what he offered to testify, and was excluded, would not have exerted some influence on the minds of the jury, in determining the' issue of tender of the $83.90. Both transactions are claimed to have occurred on the same day, and very near each other in point. of time; both relate to tenders alleged to have been made; and we think each party should have been allowed to give, his own version of all that occurred on the question of tender.
The. last charge given, relating to the credit claimed for the wagon returned, is scarcely full enough. If the defense narrows itself.down to the question of how much Johnson owed on the mortgage debt —in other words, if the jury finds against the alleged fraud, and that the mortgage was a binding contract on Johnson — and that Johnson, by virtue of the *253mortgage, owes tbe whole unpaid balance for advances made both to him and to Adair, the other signer of the mortgage, then there should be a credit allowed to Johnson for the entire value of the wagon, unless it had been previously allowed as a ■credit. On any other principle, however, if the question could become material, it would seem that Johnson,, owning only a half-interest in the wagon, would be entitled to credit for only half its value. The charge should have explained the principle-stated above.
[Reversed and remanded.