Opinion
8 Div. 405.
November 29, 1923.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
Street Bradford, of Guntersville, for appellants.
Counsel argue for error in the decree, but without citing authorities.
J. A. Lusk Son, of Guntersville, for appellee.
The defendant set up payment as a defense, and the burden is on him to establish that fact to the reasonable satisfaction of the court. Pollak v. Winter, 166 Ala. 255, 51 So. 998, 52 So. 829, 53 So. 339; 21 R. C. L. 119; Shepherd v. B. T. H. Co., 198 Ala. 275, 73 So. 498.
Under the pleadings in this case, the only proper issue was payment of the mortgage debt, in whole or in part. The trial court allowed to respondents full credit for all the payments they claimed to have made, and decreed for complainant for the balance with interest. The theory of appellants seems to be that there was such a release of the debt as to work its discharge, notwithstanding a large balance remained unpaid. We are not reasonably satisfied by the testimony that complainant ever surrendered the mortgage and note to respondents, or that she indorsed on them "paid" or "satisfied." But, in any event, the answer does not set up a release or satisfaction in writing which could have effect under Code, § 3973, according to the intention of the parties, and hence respondents could take nothing by proof of such a release.
Nor does the answer offer any outside debt as a set-off to the mortgage debt, and a general accounting was not available to respondents.
These considerations lead to the conclusion that the decree of the trial court is free from error and should be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.