| Ala. | Jun 15, 1871
—1. Where a writ is to answer A, guardian of B, the words “guardian of B,” are mere matter of description, and the suit is the suit of A. — Dowel v. Wardsworth, 2 Dev. 130.
In a note the word “guardian,” annexed to the name of the payee, is only descriptive of the person. — Baker v. Ormsby, 4 Scam. 325.
Where a plaintiff styles himself executor or administrator, and declares on a note payable to him, in that charac
These authorities are sufficient to show, that this was the individual suit of the original plaintiff, B. Graves, and, on his death, should have been revived in the name of his personal representatives, and not in the name of the appellee, who, the minute entry of the court states, was one of the heirs of S. Graves, and of full age, and that the note, the foundation of the action, was his property.
By section 2446 of the Revised Code, gurdians may sue in their own names, “for the use of the toard,” in all cases where the ward has an interest, and the judgment enures to his benefit. — Hutton v. Williams, 35 Ala. 503" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/hutton-v-williams-6506656?utm_source=webapp" opinion_id="6506656">35 Ala. 503; Longmire v. Pillkinton, 37 Ala. 296" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/longmire-v-pilkington-6506882?utm_source=webapp" opinion_id="6506882">37 Ala. 296; but this action was not brought for the use of the wards.
We hold that the correct practice, in a case like the present, is, on the death of the plaintiff, pending the suit, to revive it in the name of his personal representatives, and, on the settlement of the guardian’s accounts, by them, on proof that the note belonged to the ward’s estate, to charge the deceased guardian with the sum recovered.
We have said this, that it may not be inferred, as otherwise it might be, that we recognize and approve of the course pursued in this case; but as the irregularity was not objected to, the judgment will not be disturbed on that account.
2. The only real question, arising on the bill of exceptions, is as to the legal effect of the evidence. If true, did it show the note had been paid to the original plaintiff before his death ? If it did, the charge of the court is erroneous. If the evidence proves what the bill of exceptions states it tended to prove, we hold it clearly establishes the payment of the note. This the charge does not seem to deny, but it instructs the jury, “thát although the defendant, Bradley, might have paid the note to B. Graves, the
In this the court was certainly mistaken. The failure to deliver the note to the defendant, at the time of the payment, for the reason given by the evidence, did not, in any manner, change the legal effect of the payment, either as between the original parties, or the appellee, who, as it is shown, obtained it after the suit was commenced.
3. The charge in writing, asked by the defendants, was improperly refused; it was a correct statement of the law, and fully warranted by the evidence.
Whether the note belonged to the plaintiff, B. Graves, individually, or as guardian, the payment was properly made to him, and the payment was an extinguishment of the debt, although it continued to remain in his hands. Payment made to an intermediate holder of a note, indorsed in blank, whose name does not appear on the note, such holder being, really, the owner at the time, is a good payment. — Richardson v. Farnworth, 1 Stew., 55" court="Ala." date_filed="1827-01-15" href="https://app.midpage.ai/document/richardson-v-farnsworth-6531265?utm_source=webapp" opinion_id="6531265">1 Stewart, 55. If the note had been left in the hands of the payee, after payment, for an improper, fraudulent purpose, the rule would be otherwise, as between the maker and a subsequent Iona fide holder, for value; but that is not pretended in this case; the note was not given up, because it was not at hand when the payment was made.
Let the judgment be reversed and the cause remanded, at the appellee’s cost.