BAKER v. SHOEMAKER

(78 South. 826) BAKER v. SHOEMAKER. (3 Div. 322.) (Supreme Court of Alabama. Dec. 20, 1918. Rehearing Denied April 25, 1918.) 1. Appeal and Error <&wkey;690(4) — Scope — Record. In ejectment, where plaintiff introduced mortgage and foreclosure deed, and the bill of exceptions failed to set them out, or state their stipulations and recitals, the court could not determine whether defendant’s objections to their admission were well taken. 2. Appeal and Error <&wkey;671(3) — Scope — Record. Where purchaser at foreclosure brought ejectment, and defendant relied on payment of the mortgage debt before foreclosure, the court on appeal could not pronounce erroneous a judgment for iMaintiff, where the record failed to show date of foreclosure, and the bill of exceptions did. not contain all of the evidence. 3. Appeal and Error <&wkey;1051(l) — Harmless Error. Erroneously permitting party to testify to agreement with other party’s deceased husband was harmless, where same testimony had previously gone in without objection. Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Ejectment by W. M. Shoemaker against Lucy Baker. Judgment for plaintiff, and defendant appeals. Affirmed. W. R. Brassell and. Brassell & Brassell, all of Montgomery, for appellant. Ball & Beck-with, of Montgomery, for appellee. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. Plaintiff sues defendant in statutory ejectment and the court, sitting without a jury, rendered a judgment for plaintiff. After showing that one Daniel Baker, defendant’s husband, was the owner of the lot sued for, plaintiff introduced in evidence a mortgage to himself on this lot from said Baker, and also a foreclosure deed under the mortgage. These conveyances are not set out in the hill of exceptions, nor is there any showing as to their stipulations and recitals, except that the mortgage note was for $225. Whether defendant’s objections to tbeir introduction in evidence were well taken it is impossible to determine. The defense seems to have been that the mortgage debt was paid before the foreclosure hy plaintiff’s reception of rents collected from the mortgaged property. But not only is the date of the foreclosure not shown, but the bill of exceptions does not purport to contain all the evidence adduced on the trial. We cannot, therefore, pronounce the judgment erroneous. The trial judge erroneously allowed plaintiff to testify to an agreement he had made with Daniel Baker, now deceased, authorizing him to apply the rents from the mortgaged place to Baker’s general account. But the same testimony was given several times previously without objection from defendant, and the fact would have remained in evidence regardless of the rulings complained of. But, in any view of the case, the condition of the bill of exceptions does not enable us to discover error in the judgment. Affirmed. ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur.