#### Burton *v.*Phillips, *et al.*

*Failure to Enter Partial Payment of Mortgage.*

(Decided Dec. 11, 1911.

57 South. 152.)

1. *Appeal and Error; Assignment; Joint.*— Where the assignment is that the court erred 'in overruling demurrers to the first and second count, and one of the counts was not subject for any of the grounds of demurrer assigned, the joint assignment is not sustained.

2. *Same; Waiver.*— Assignments of error not insisted upon in brief or argument are deemed to be waived, and where counsel merely assert in brief that the refusal of certain charges was error, the court will not review the charges assigned.

3. *Mortgages; Satisfaction; Penalty; Evidence.*— In a suit to recover the statutory penalty for a failure to enter payment on the margin of the record, it was immaterial whether another person was indebted to the mortgagee before that particular mortgage was executed.

4. *Evidence; Admissions; Predicate.*— Where the evidence is of such a character as to constitute an admission by the adverse party it is not necessary to lay a predicate or foundation for its admission.

5. *Trial; Reception of Evidence; Relevancy.*— A court will not be put in error for sustaining an objection to a question in the absence of any disclosure as to how the answer would be material, although subsequent developments in the trial showed it to be admissible.

Appeal from Walker Circuit Court.

Heard before Hon. J. J. Ray.

Action by C. W. Phillips and others against Adeline Burton for penalty for failure to enter partial payment upon a mortgage. Judgment for plantiffs, and defendant appeals.

Affirmed.

Count 2 is as follows: “Plaintiffs claim of the defendant $200, the penalty provided for by Section 4897 of the Code of Alabama, and they aver that heretofore, to wit, on the 10th day of Juy, 1899, they executed to the defendant, Adeline Burton, a mortgage to secure an indebtedness, which said mortgage is of record in Book AA of Mortgages, p. 412, in the office of the judge of *226probate of Walker county, Alabama. Plaintiffs a.ver that on, to wit, tbe 4th day of June, 1908, after said mortgage had been fully paid or satisfied, and after the defendant had received full payment or satisfaction, they requested said defendant in writing to enter the. fact of payment or satisfaction on the margin of the record of the mortgage. Plaintiffs aver that, although more than two months had passed since said request was so made to the defendant, she has wholly failed to so enter the fact of payment or satisfaction on the margin of the record of said mortgage. Plaintiffs further aver that there is not pending a suit in which the fact of payment or satisfaction of said mortgage is or may be contested, and that no suit has been instituted in which the fact of payment or satisfaction is or may be contested.” The demurrers to this count were as follows: “Because same states no cause of action. Because the same fails to aver that said mortgage is fully paid and satisfied. Said count fails to allege that plaintiffs made payment of said mortgage to defendant.”

The testimony of the plaintiffs tended to show that the mortgage was given to secure two notes, one for $20, due at a certain date, and one for $85, due at another date; that W. F. Wright was his stepfather, and interested in the land, and that W. T. Wright was also interested in the land; and he and W. T. Wright gave W. F. Wright the money to pay the $20 note, and went with him to the house of Mrs. Burton, but did not go in, and that when W. F. Wright came out he had with him the $20 note; that later on he gave W. F. Wright $10, and W. T. WTight gave him $20, and W. F. Wright was to furnish the other $5 to .pay off the $35 note, and that he went to Mrs. Burton’s, but the witness did not know whether he paid her or not, although he afterwards instituted a proceeding against her to have her settle the *227mortgage. It also appeared'that W. F. Wright conducted all negotiations concerning the land and the mortgage, hut. did not sign the mortgage. Whereupon, on cross-examination, the defendant propounded to C. E. Phillips the following questions: “Don’t you know that Squire Wright (who was W. F. Wright) owned Mrs. Burton a debt on July 1, 1899?” The court sustained objection. The question to Irwin Wright was: “Did you hear a conversation between John Powell and Mrs. Burton, some two or three years ago, somewhere between the places where John Powell lives and where Mrs. Burton lives?” The witness answered, “Yes,” and detailed the following: “This conversation was near Shannon’s Push, Shannon’s little mine; but I have no idea what time it Avas. Mr. PoAvell asked her if she held a note against Mr. Wright, and she said she held a small note, and a part of it had been paid. It did not amount to much. She said the credits Avere Avritten Avith a pencil, and she took a pen and ink and Avent over it to make it plain. At the time they were talking about some land that PoAvell bought from the Wrights. The conversation Avas about some debt on the land.” Seasonable objection Avas interposed to the question and answer.

Zac P. Sheperd and D. A. McGregor, for appellant.

Counsel discuss the assignments of error, but Avithout citation of authority.

J. D. Acure and B. A. Cooner, for appellee.

Counsel discuss the assignments of error and insist that the case shoud be affirmed on the authority of the former appeal. —49 South. 448.

WALKER, P. J,

The first assignment of error is as folloAvs: “The court erred in overruling defendant’s demurrers to the first and second counts of the complaint.” *228Obviously tbe second count was not subjected to demurer on either of the grounds stated. The counsel for the appellant do not even .claim in argument that the demurrers to that count should have been sustained. When two or more rulings are embraced in one assignment of error, if either of the rulings was free from error, the appellant can take nothing by the assignment, as a single assignment of error, to be supported, must be good in *whole.*—Brent *v. Baldwin,*160 Ala. 635, 49 South. 343.

This is a suit to recover the statutory penalty for the alleged failure of the defendant to enter payments on the margin of the record of a mortgage executed by the plaintiffs to her. C. W. Phillips, one of the plaintiffs, was the first witness examined in their behalf. He testified that the mortgage was given for the price of real estate purchased from the defendant, and that it and the notes secured by it were executed and bore date July 10, 1899. His testimony also tended to show that payments had been made on the mortgage. There was nothing in his testimony to indicate how the question as to whether a person other than the mortgagors, Squire Wright, was or was not indebted to the defendant- before the mortgage was executed, could be at all relevant or material to any issue in the case. At this stage of the trial the witness was asked on his cross-examination: “Didn’t you know that Squire Wright was owing Mrs. Burton a debt on July 1, 1899?”

In the absence of any disclosure to the court as to how the answer of the witness to the question could be relevant or material testimony, it is not to be charged with error because of its action in sustaining an objection to the question. It may be conceded that, in the light of subsequent developments in the trial, an affirmative answer to the question might have had some ten*229deucy to sustain a contention advanced by the testimony of the defendant. But, at the time the question was asked, the court was justified in treating it as an inquiry in reference to a matter foreign to the issues in the case. As the bill of exceptions does not show' that it Avas then made knoAvn hoAV the ansAver of the witness to the question might have a. bearing on the issue in the case, the court is not to be charged Avith error because of its refusal to permit the prosecution of an inquiry then apparently irrelevant and immaterial.

There Avas no error in the refusal of the court to exclude the answer of the Avitness Invin Wright to the question in reference to a conversation between John PoAvell and the defendant, on the ground that no predicate had been laid for the admission of the proof. The matter deposed to was an admission by the defendant as to the subject in controversy in the case. If the testimony is of such a character as to constitute an admission by the adverse party to the suit, it is not necessary to lay a predicate or foundation for the reception of the evidence. Jones on Evidence, § 236. The rule as to laying a predicate for the admission of proof of contradictory statements made by a witness has no application here.

The refusal of the court to give charges 2, 3, 5, and 6 requested by the defendant is made the subject of one assignment of error. Some, if not all, of those charges were obviously faulty. Besides, this assignment of error is to be treated as waived, as the counsel for the appellant do no more in the way of argument in support of it than mention the four charges and assert that the court erred in refusing to give *them.*—Fitts *v. Phoenix Co.,*153 Ala. 635, 45 South. 150.

Affirmed.