67 Ala. 486 | Ala. | 1880
— The 6th plea is defective, and the demurrer to it should have been sustained. "Wright’s release could and did not bar Harris’s right of recovery. Moreover, the release being executed long after the action was pending, could not bar the expense of the suit theretofore incurred. — Harris v. Swanson, 62 Ala. 299; Cunningham v. Carpenter, 10 Ala. 109; McDougald v. Rutherford, 30 Ala. 253, and authorities.
The Circuit Court did nbt err in receiving evidence of the pending suit by Gholson, assignee of the mortgage, brought against Harris before the latter requested Swanson & Brother-to enter satisfaction of the mortgage. If the transfer had been made before that request was made, Swanson & Brother had no power or authority to satisfy the- mortgage, and failing to do so imposed no penalty on them. The record of that suit, if admissible for nothing else, was competent evidence to prove notice to Harris that the transfer had been made. Graham v. Newman, 21 Ala. 497.
Reversed and remanded.