When am, accoimb is the foundation of a suit, the statute provides that, at any time previous to the trial, the defendant is entitled, on notice, to “ a list of the items composing it.” — Code, 1816, § 2984. This is, in effect and substance, the same as the common-law bill of particulars. Robinson's Adm'rs v. Allison, 36 Ala. 525. That, however, *94was never regarded properly as a part of the record, and our practice is to make it so by incorporating it in the bill of exceptions.—1 Phil. Ev. (C. H. & E. notes), 4th Ed. 799; Com. v. Davis, 11 Pick. 432; Prior v. Johnson, 32 Ala. 27. This view precludes us from considering the memorandum copied in the record, and purporting to be a bill of particulars. It should have been embraced in the bill of exceptions, as a part of the proceedings in the cause.
The present suit is in assumpsit, embracing several counts, including money had and 'received, goods sold, and money paid at reguest. The exceptions reserved are all taken to the rulings of the court below on the evidence. The correctness of these are readily determined by a few plain principles of law of easy application.
■ The plaintiff in the lower court mortgaged his lands to the defendant, to secure a debt payable to defendant, for something over two hundred dollars. Yery soon afterwards, the note ana mortgage was assigned by the payee to one Black, for value received. Defendant, acting for the assignee, sold the land, for the sum of one hundred and fifty dollars, to one Phillips, who seems to have purchased at the request of plaintiff. The purchaser paid the mortgagee, Iiayes, the sum of one hundred and twenty-six dollars and seventy-five cents, the amount claimed to be due on the mortgage debt, and he paid the balance- to the plain tiff, Woods. The plaintiff claims that the mortgage debt was paid, and sues for the money. The items claimed as credits embrace chattels delivered, and money alleged to have been paid before and after the assignment of the mortgage debt.
There can' be no doubt of the proposition, that when a mortgagee, in the exercise of a power of sale, sells either land or personal property conveyed by the mortgage, and has any surplus money remaining in his hands after paying the debt and reasonable costs, an action of assumpsit will lie against him, at the instance of the mortgagor, to recover it. As it is sometimes stated, “ the mortgagee becomes a trustee for the mortgagor, as to the surplus received.—2 Jones Mort. §§ 1924-25, 1940; Jones Chat. Mort. § 817; Blecker v. Graham, 2 Edw. (N. Y.) 647; 1 Brick. Dig. 140, §§ 72 et seg. A most material issue, in all such cases, is the true and correct amount of the mortgage debt; and therefore, necessarily, the sum of the credits to which the debtor is justly entitled as payments upon it.
All the items of credit excepted to as evidence, either fall properly under the count for goods sold by the plaintiff to the defendant, or money had and received, or paid by request; or else there was evidence tending to show that they were to be considered payments on the mortgage debt. The fact that the *95item for corcl-wood, and perhaps some others, were barred by the statute of limitations, can be of no benefit to the defendant, inasmuch as the statute was not pleaded, as is required to be done, in such cases, in courts of law.—Huss v. Central R. R., &c., 66 Ala. 472; Ang Lim. 285.
It is immaterial that some of the alleged payments on the mortgage debt were made after the assignment of it to Black. If made at any time, to one authorized to receive the money, they would, pro tanto, discharge the debt, and to this extent increase the surplus in the hands of the mortgagee, to which the plaintiff would become entitled after foreclosure under the power.
It is contended, that the money was paid by the plaintiff to the defendant voluntarik/, because he authorized Phillips to bid for him at the mortgage sale. This would be a correct position, if the sale had been absolutely void, and not merely voidable, as the evidence shows it to be.—Beene's Adm'r v. Collenberger, 38 Ala. 647. But, even if the mortgage debt was entirely paid, such payment would not, in the case of land, operate to re-in vest the title in the mortgagor, so as to defeat an action of ejectment at law. The legal title being still in the mortgagee, he could sue for the possession, and recover, although .a different rule applies in cases of suit for personal property. Slaughter v. Swift, 67 Ala. 494; Burns v. Campbell, at the present term. The foreclosure, therefore, was only voidable in a court of equity, unless its preventive power by injunctive relief had first been invoked. The payment, in this view of the matter, can not be regarded as voluntary. It may rather be presumed to have been made by the mortgagor to save his property from sacrifice; or, as this court has said in another case, when discussing the subject of voluntary payments, “because there was an apparent subsisting means of enforcing the demand, without a resort to judicial proceedings, and without giving the party \plcdntif\ a dap in court.”—Town Council v. Buvrnett, 34 Ala. 400, 407, per Walker, J.
There is no force in the argument, that defendant can not be made liable, because he was acting as the agent of the assignee of the mortgage, and had paid the proceeds of sale over to him. The sale was the joint act of himself and Black, both uniting to execute the power, as shown in the advertisement of sale. He also acted as Black’s agent, the latter being a non-resident, and collected the money. He, furthermore, had notice of the fact, that the plaintiff denied his liability for the mortgage debt, on the ground that it had been paid. He should have held the fund in dispute until the rights of the contesting parties were determined. — 2 Jones Mort. § 1940; Yarborough v. Wise, 5 Ala. 292; 2 Greenl. Ev. § 125.
*96The objection was properly overruled, which was taken to the plaintiff’s statement, made when under examination as a witness, that “ the mortgage was foreclosed, and the land sold on the 15th of November, 1880, and the balance due thereon (one hundred and twenty-six dollars) paid over to John W. Black.” This evidence was not admissible, perhaps, for the purpose of proving the sale, which was afterwards proved by production of the deed and mortgage; and if the objection had been placed upon the ground, that the first clause of the statement was mere secondary evidence, it might have prevailed, as-being correctly taken. But this point was waived by the broad objection urged against the whole of it, as being “incompetent and irrelevant.”—David v. David’s Adm’r, 66 Ala. 140; Kilparick v. Pickens County, Ib. 422.
We discover no error in the record, and the judgment is affirmed.