Opinion
7 Div. 45.
March 10, 1932.
Appeal from Circuit Court, Clay County; Emmet S. Thigpen, Judge.
A. L. Crumpton, of Ashland, for appellant.
The burden of showing alteration of a written instrument is on the person claiming that the same has been altered. 2 C. J. 1267; Bouldin v. Barclay, 121 Ala. 427, 25 So. 827; Ehl v. Watkins Med. Co., 216 Ala. 69, 112 So. 426. Where a written instrument is shown to have been signed by the person alleged to have executed it, the burden is on such person to show alterations later made in the instrument. Authorities, supra. A receipt is prima facie proof of the payment of the amount shown. Code 1923, § 7669.
C. W. McKay, of Ashland, for appellee.
The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the appearance or alteration. 1 Greenl. on Evi. 564; Barclift v. Treece, 77 Ala. 528; Glover v. Gentry, 104 Ala. 222, 16 So. 38; Code 1923, § 7717; Whitewater Lbr. Co. v. Langford, 216 Ala. 510, 113 So. 525; White v. Hass, 32 Ala. 432, 70 Am. Dec. 548; 2 C. J. 1269. Parol or extrinsic evidence is admissible for the purpose of impeaching an instrument to show the fact that an alteration was made therein. If it is not shown by whom the alteration was made, the court cannot presume it to have been made by the holder, but a jury may. 2 C. J. 1282; Davis v. Carlisle, 6 Ala. 707. A party is entitled to a reversal only for errors injurious to him. Pate v. Hall, 220 Ala. 411, 125 So. 650.
The suit was statutory ejectment based upon a mortgage duly foreclosed. The defendant insisted that at the time and prior to foreclosure the mortgage had been paid. A number of receipts were referred to in the testimony, and two were offered in evidence by defendant, the execution of which was denied by the mortgagee, as a witness for the plaintiff, the mortgagee insisting that on those dates he gave receipts for amounts considerably less than those shown on the receipts. The issue of fact was submitted to a jury, and verdict rendered adversely to defendant, and from the judgment following he has prosecuted this appeal.
Plaintiff's evidence, consisting of the testimony of the mortgagee, and the offering in evidence of the mortgage, notes, and foreclosure deed, established prima facie a case for recovery, and the burden of proof rested upon defendant on his plea of payment. May v. Middleton, 211 Ala. 459, 100 So. 640.
Counsel argue defendant's refused charge upon the assumption that it presents the question as to burden of proof as to alteration of the instruments, and cite numerous authorities, among them Bouldin v. Barclay, 121 Ala. 427, 25 So. 827; Ehl v. Watkins Med. Co., 216 Ala. 69, 112 So. 426; 1 Greenl. on Ev. § 564; Barclift v. Treece, 77 Ala. 528; Glover v. Gentry, 104 Ala. 222, 16 So. 38; Whitewater Lbr. Co. v. Langford, 216 Ala. 510, 113 So. 525; Davis v. Carlisle, 6 Ala. 707; §§ 7717 and 7669, Code, 1923; 2 Corpus Juris 1267-1282. It is the rule, however, that a requested charge should be so framed that it will not mislead, and that the principle of law involved be correctly stated or expressed. Eagle Phoenix Mfg. Co. v. Gibson, 62 Ala. 369; Thomas v. State, 124 Ala. 48, 27 So. 315; Brown v. State, 46 Ala. 175. A reading of the refused charge discloses it is not confined to the question argued and, indeed, the word "alteration" is not used. The charge is of much wider scope, and, in view of the burden of proof as to payment resting upon defendant, it had a decided tendency to mislead, which fully justified its refusal. Herring v. L. N. R. R. Co., 203 Ala. 136, 82 So. 166; B'ham. Rwy. Elec. Co. v. Wildman, 119 Ala. 547, 24 So. 548; 27 Ala. So. Dig. page 200.
Moreover, the trial court in the oral charge instructed the jury that the "burden of proof is on the plaintiff to satisfy you from the evidence that the mortgage debt had not been paid," thus placing upon the plaintiff a greater burden of proof than the law required, and which would of course include any explanation as to receipts offered by defendant. In any event, therefore, defendant has suffered no injury by the refusal of his requested charge.
The refusal of this charge is the only question argued, and, as it presents no reversible error, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.