119 Ala. 312 | Ala. | 1898
The court erred in charging the jury at the ■ request of defendants that “when transactions are made between relatives, the law requires a stronger degree of proof to establish the validity of the transaction than if such transaction was between strangers.”- — Teague. Barnett & Co. v. Lindsey et al., 106 Ala. 266, 277.
Defendants themselves introduced a note, and a mortgage securing its payment, executed by G. E. Clewis to E. L. Clewis on December 17, Í894. This was certainly some evidence of an indebtedness by G. E. to E. L. Clewis at the timé the bill of sale was executed on January 4, 1895, no .pretense being made that the-note had
The court correctly charged the jury that if they were “reasonably satisfied with the evidence that G. E. Clewis, at the time of the sale, was a resident of the state, and that the property owned by him in this state was not worth more than one thousand dollars, and that he sold the same to E. L. Clewis, then they need make no further investigation, and their verdict will be for the plaintiff.” Charge 3 given for the defendants is directly antagonistic to this proposition, and should not have been given. It authorized and required a verdict for the defendants upon certain facts Avhich might well exist along Avith the facts hypothesized in the charge quoted, and Avhich if they did exist required a verdict for plaintiff, notAvithstanding the jury should find the truth of the facts hypothesized in said charge 3. •
The contract of sale was not void because of the coverture of E. L. Clewis, but voidable only at her election Avhether it be considered a Georgia contract, and, therefore, presumably under the common law, or an Alabama contract and controlled by our statutes. — Scott v. Cotton, 91 Ala. 623; Marion v. Regenstein & Co., 98 Ala. 475; Strauss, Pritz & Co. v. Glass, 108 Ala. 546; Scarbrough v. Borders, 115 Ala. 436; Scott v. Taul, 115 Ala. 529.
The case of Strauss v. Schwab, 104 Ala. 669, is in conflict on the point under consideration with the cases cited, and in so far as it holds that a contract of sale made to the wife without the statutory assent of the husband is Aroid, it must'be overruled.
-W.e discoArer no error in the other rulings of the court to which exceptions Avere reserved.
Reversed and remanded.
