Locke v. Humphries

60 Ala. 117 | Ala. | 1877

MANNING, J.

[After stating the facts] — We think there was no error in the ruling of the circuit judge, Appellants having received from Kerr, administrator, the property of their father’s estate, and had a settlement with him of his administration, in their letter of October, 1867,- inform Car-lisle & Humphries thereof, and of their purpose to pay them the balance of the debt contracted by Kerr, the late administrator, recognizing their obligation to do so, as arising out of the settlement with Kerr, in the Probate Court, and out of their having obtained a judgment on said settlement for the total amount due from him, and a levy upon his property in Greenesboro to pay it. They only request, as prices are then low, that they shall not be required to sell the property levied on to pay all of the debt to appellees, at the end of that year, but that they shall be indulged, for so much as they can not pay that winter, until the next year. This being assented to, they pay a part of the debt, and afterwards give their notes for the residue, and renew for another year their ' note for the sum still unpaid, getting indulgence, through a period of four years, upon these representations and promises.

“The promise of one person to pay the debt of another, made upon a new and valuable consideration beneficial to the promisor, is not within the statute of frauds,” — Mason v. Hall, 30 Ala. 599.

The facts make this case less obnoxious to that statute, than were the cases McKenzie v. Jackson, 4 Ala. 230, and Mason v. Hall, supra. In the former of those, Ormond, J., said: “Adams and McKenzie promised Gerald to pay the debt which the latter owed to Jackson, in consideration of receiving the effects of the former firm, which are transferred to them; and subsequently McKenzie, by parol, prpmises Jackson to pay him, and solicits indulgence. If Gerald, instead of transferring merchandise and debts on other persons, had handed over to McKenzie the amount in money, with directions to pay it to Jackson, it can not be doubted that the person receiving it would be liable on his promise to him; and yet there can be no difference between the two cases,” — See, also, Farley v. Cleaveland, 4th Cowen, 432.

In the present case, appellants say that the administrator of the estate, against which the debt to appellees had been contracted, has had charged against it too much by about $1,000; for which the estate was not liable, either to the creditors, or to the administrator, upon his settlement. But, instead of controverting this question with the creditors, the administrator is charged with that sum in. their settlement with him, and they obtain judgment and a levy on his property for that much more than they otherwise would be entitled to, and make themselves hable to the payment of the debt. This is what they, in effect, communicate in writing to the creditors, in a letter promising to pay the debt due to them, and asking indulgence for a year as to a part; and receiving this, they afterwards execute their notes to the creditors for the unpaid balance. It would be a perversion of the statute of frauds from its proper object, to hold that it invalidated such a contract. >

Let the judgment of the Circuit Court be affirmed.