56 Ala. 363 | Ala. | 1876
Certain questions controverted in this case, are, we think, so established by the proofs, that we lay them down as facts. Among these are the following: That W. H. Robinson, esq., was the attorney of record of Lavinia Kirby, in the matter of her suit and judgment against A. J. Kirby, S. W. Frazier, and Benjamin Snodgrass ; that Hugh L. Parks, complainant’s intestate, paid to Robinson the amount that remained due on said judgment, taking a transfer of same to himself, made by said Robinson in the name of Lavinia Kirby; that this payment was made by Parks, at the instance and request of Frazier,‘who was the surety of A. J. Kirby in said judgment; that the note and mortgage executed by Frazier to H. L. Parks, July 12,1867, were given by him as security for the repayment of the money he, Parks, had so paid for Frazier to Mrs. Kirby; that H. L. Parks, in his life-time, was counsel and collecting attorney for Robert Frazier, as administrator of the estate of Joseph P. Frazier,
Certain other questions are left in dispute by the evidence. Among these are the following : Whether Frazier let Parks have the stock before or after July 12th, 1867; and whether Parks had in his hands any money assets, belonging to Robert Frazier, administrator of Joseph P., deceased. S. W. Frazier, defendant, testified that he let Parks have the railroad stock after he executed the note and mortgage, on an agreement that the proceeds should be applied, pro tanto, to the extinguishment of the mortgage debt. Tuis testimony was duly objected and excepted to, and was rightly ruled out by the chancellor. It related to a “ transaction with the intestate;” and, under the statute, he was not competent to testify in regard to it. — Rev. Code, § 2704, as amended. There is no legal evidence in the record, which shows the agreement, or terms, on which Frazier let Parks have the railroad stock. As we stated above, it is not satisfactorily shown whether Frazier let Parks have the railroad stock before or after the execution of the mortgage.
It is contended for appellant, that Robinson had no authority to transfer to Parks Mrs. Kirby’s judgment against A. J. Kirby, Frazier and Snodgrass ; and that, consequently, that judgment is still the property of Mrs. Kirby, and Frazier is liable to pay it to her. We consider it unnecessary to inquire into Robinson’s right to transfer the judgment. — See Rev. Code, § 3078. Being attorney of record in the cause, he clearly liad the right to receive the money due upon it; and he might so receive .the money from a stranger. Receiving the amount in full, no matter by whom paid, Mrs. Kirby would no longer have the right to enforce the judgment for her benefit, but must look to Robinson, her attorney, for the money. — Albertson, Douglass & Co. v. Goldsby, 28 Ala. 711
The payment of this money by Parks, at the instance and request of Frazier, was and is a sufficient consideration to uphold Frazier’s note and mortgage to Parks. The testimony shows that the assignment of the judgment to Parks was for the benefit .of Frazier; and if Mrs. Kirby should attempt to enforce the collection of the judgment, Frazier,
Much conjecture has been indulged, based on the. fact, that while the sum collected of Parks by Bobinson was $591.94, the note given by Frazier to Parks, with mortgage to secure it, was for the sum of $662.73 ; a difference of $70.79. Much of this apparent incongruity is explained, when it is remembered that Parks paid cash on 12th July, 1867, and took Frazier’s note at twelve months without interest. It is a noticeable fact, too, that the amount of the note, $662.73, is within ten or fifteen cents of the precise sum, which the amount paid, $591.94, would amount to at the end of twelve months, by adding to it one per cent, a month, — twelve per cent, a year. "While it is usurious and unlawful to charge more than eight per centum, per annum, for the loan or forbearance of money, it is known that such usurious charges are not infrequently made. We have volunteered these remarks as a possible solution of the apparent repugnancy between the amount paid, and the sum of the note taken. The plea of usury was not interposed, and hence no legal question can grow out of it.
The remaining points of the defense relied on are : First, that the proceeds of the railroad stock should have been allowed as a partial payment on the mortgage note. The proof in the record does not convince us that the chancellor erred in disallowing this claim. As we have said, the proof leaves the question in doubt, whether Parks received the stock before or after July 12, 1867, the date of the note and mortgage. The testimony shows that Frazier owed Parks, on other account, a sum nearly equal to the proved value of the stock. It is quite as reasonable that the stock was applied to the liquidation of that claim, as that it should be allowed as a partial payment of the mortgage note. The testimony is too meagre and unsatisfactory to support this plea of payment.
Second, It is claimed that intestate, as attorney of the administrator of Joseph P. Frazier, had in his hands moneys of said estate, in which defendant Frazier was entitled to share as distributee; and defendant seeks to set this off against the note and mortgage. We say set off, because there is no legal proof that Parks had agreed to so apply it. The proof is very unsatisfactory on the question, whether he had, or had not in his hands, money assets belonging to the estate of Joseph P. Frazier. But, if the testimony were full to this point, it could not help the appellant. An attorney, in such conditions, would have no authority to make distribution, or to make payments to or for the distributees. It was his
Tbe answer of defendant to tbe amended bill, not being sworn to, is not evidence.
Tbe decree of tbe chancellor is affirmed.
