93 Ala. 92 | Ala. | 1890
— This action was commenced by attachment for rent and advances, sued out by the landlord, Bolling. One item of comparatively insignificant amount, in the account of the landlord, was neither for rent nor advances. On this a motion was predicated to dissolve the attachment m toto. It was properly overruled. Authorities are cited to sustain the assignment of error directed against the court’s action in this regard, which bear upon the entirely different question presented where it was sought to enforce the lien on crops, &c., conferred by section 3286 of the Codé of 1876, under a written note or obligation which covered items not within the terms of the statute. In such cases, it was uniformly held, that the effort to fix a lien on the crops, for items not provided for, vitiated the obligation, so far as the rights and remedies given by the statute were concerned, as a whole, so that no lien arose, or could be enforced, even for other items included therein, which came within the terms of the . act. And from this view it resulted, that an attachment under section 3288 of that Code was subject to a motion to dissolve in toto, unless every item of the debt, for the collection of which the extraordinary remedy was invoked, was incurred for “horses, mules,
The motion to dissolve the attachment having been overruled, and properly so, we think, and issue joined on the . merits, the sole question before the jury was that of indebtedness vel non from defendant to plaintiff, on the matters set forth in the complaint, and the amount of it, wholly irrespec- ' tive of the character of the items composing the claim as being for rent and advances, or otherwise. — Code, §§ 2996, 2999;, Burroughs v. Wright, 3 Ala. 43; Brown v. Coats, 56 Ala. 429.
On the trial, there was evidence tending to show, or from which the jury might have inferred, that the advances to the defendant were made by R. E. Bolling & Oo. The evidence is without conflict, however, that, while there was nominally such firm as R. E. Bolling & Oo., yet only R. E. Bolling had any interest in its business or property, and hence that he alone was beneficially interested in the account for advances involved here. The mere fact of the business being carried on under a firm name, even conceding that thereby a son of R. E. Bolling, who really had no interest at all in it, but was a clerk receiving,a salary for his services as such, was held out as constituting the “company” in the partnership, could afford no inference against Bolling’s right to recover in this action in
Similarty, the evidence that the defendant owed the amount claimed for advances, as also the item he had assumed to pay for one Mills, is free from all conflict and adverse inferences. Indeed, the only contention of the defendant as to his liability was with respect to the claim for rent, and the confinement of his attempted impeachment of the account to this item must be taken as an admission of its correctness as to all other items. Burns v. Campbell, 71 Ala. 271.
In denial of his liability for rent, for which he had executed a note to the plaintiff, which note was in evidence, the defendant testified as follows: “That when he signed said note, it was agreed between plaintiff and himself that he was not to pay any rent; that it was to go that way to the outside world, because he was in debt to other parties, and so that he could keep his creditors off until he could pay them up.” This evidence was manifestly illegal, and doubtless would have been excluded on objection. Being admitted, however, if it tended to establish any fact which would have been a defense to the action, in whole, or in part, the general charge given for the plaintiff was erroneous. But it did not tend to establish any such fact. Taken all together, as it must be, it went only to show that the execution of the note was the result of a fraudulent combination between the parties to it, for the purpose of hindering and delaying the creditors of the maker; and if this state of facts had been fully shown, and found to exist by the jury, they yet would not have been justified in returning a verdict for the defendant, as to the amount evidenced by the note. He could not thus rely upon his own fraud and iniquity to gain an advantage in a court of justice. These facts, however fully proved, constituted no defense to the action on the note, as was held in another branch of this litigation at the resent term (Giddens v. Bolling, 92 Ala. 586); and there was no error committed by the court in giving the general charge for plaintiff, notwithstanding evidence was received which tended to establish them.— Williams v. Higgins, 69 Ala. 517.
The judgment of the Circuit Court is affirmed.