47 So. 270 | Ala. | 1908
— This bill is filed by Elizabeth J. Manser to foreclose two mortgages executed to her — one by her son, Robert H. Manser, on the 11th day of March, 1889; and the other by her son-in-law, Stonewall J. Bowles, on the 18th day of November, 1889. The mortgagors allowed decrees pro confesso to be rendered against them. The other respondents, Shelton Sims, James W. Grove, Alfred D. Shelnut, and Robert E. Terry, claim to have acquired the property mortgaged, through conveyances from the mortgagors to Joseph Espalla, from Espalla to William H. Gamp, and from Camp to them
If either of the defenses set up is established by the evidence, the decree should be affirmed. It is conceded that Joseph Espalla owned in severalty the land in controversy from May 13,1888, to March 11,1889, and that he was conducting a real estate business during this period. On the latter date Espalla conveyed to Robert H. Manser an undivided one-third interest, and on the 16th of November, 1889, he conveyed to Stonewall J. Bowles an undivided one-third interest, in the land. It is shown without conflict in the evidence that complainant loaned to her son and her son-in-law the money with which to pay Espalla for their interests in the land, and that as a part of their purchase contract Espalla conveyed to them, respectively, the real estate described in the- mortgages. The mortgages were not filed for record until the 26th day of October, 1895. On the 25th day of May, 1891, Robert H. Manser and Bowles reconveyed to Espalla, with other property, the two one-third interests in the property which they had acquired from him, and which is described in the mortgages and the bill; and on the same day Espalla executed to complainant a note in the sum of $8,666.66 and a mortgage to secure it. This mortgage embraced all the property which is included in the mortgages sought to be fore
The case of Day v. Thompson, 65 Ala. 269, cited and relied on by appellant, is one in which the question was' whether or not an account due from the defendant debt-: or to the plaintiff Avas settled by the acceptance by the plaintiff of a bill of exchange drawn by a domestic bank on a New York bank and indorsed by the defendant. In discussing the law of the case the court said: “It is well-settled doctrine, in the general law commercial, • both ■ in England and the United States, that the giving of a negotiable bill or note for an antecedent debt will not operate to discharge such debt, unless it Avas accepted in absolute payment. Prima facie it is to be considered as collateral or additional security; but by express agreement it may be a satisfaction and a bar.” In Keel v. Larkin, 72 Ala. 493, a case which involved the question whether the taking of the promissory note of a debtor by the creditor for an antecedent debt would operate in laAV to discharge such debt, the trial court gave at the request of the plaintiff charges 2 and 3, which in effect required the jury to find that there was an express agreement to take the note in discharge of the debt before it would operate such discharge. The court, speaking through the same judge (Somerville) who Avrote the opinion in Day v. Thompson; after holding that whether a new security, of no higher nature, executed by a debtor, is taken in payment and discharge of a pre-existing debt for which it is given, is a question of intention, and after repeating the law as stated in Day v. Thompson in respect to express agreement, said: “We are also clearly of-opinion that it may as Avell be proved by an implied agreement of
In the light of these principles, and of the further principle that the respondents carry the burden of proving that the substituted note and mortgage of Espalla were taken and accepted, in extinguishment of the debts of the son-in-law, and not as collateral or additional security thereof (McWilliams v. Phillips, 71 Ala.
It must be conceded that Robert H. Manser and Bowles testified, in effect, that the Espalla mortgage was given as collateral security, and not in settlement of their debt to complainant. Espalla’s evidence is to the effect that his mortgage to complainant was given in full satisfaction of the debts due her from her son and son-in-law. The mortgages from R. H. Manser and Bowles to the complainant each embraced a one-third interest in 12 pieces of real estate. The entire interest in 7 of the 12 pieces was embraced in the mortgage from Espalla to Mrs. Manser, while 5 of the pieces were omitted from the mortgage. Besides the 7 pieces embraced in the mortgage from Espalla, there were embraced 18 other lots. The mortgage was placed on record the day, or the day after, it was executed; while the mortgages from R. H. Manser and S. J. Bowles were not recorded until more than four years subsequent to the recording of the Espalla mortgage. The mortgage
The debts for which they were given as security are barred by the statute of limitations. McKenzie v. Matthews, 44 South. 958. The evidence shows that Mrs. Manser made no claim under the mortgages during 14 years from the time the Espalla mortgage was given until the filing of this bill. She has released property in the Espalla mortgage, which was also in the Bowles and Manser mortgages, without asserting any claim to it under those mortgages. To the contrary, when she received the money for such property, she asserted that she had no other claim thereon. She also stated to Mahorner, an attorney representing the interests of a client, who visited her to ascertain if she claimed the property under the Manser and Bowles mortgages, that she did not. The evidence further shows that the Manser and Bowles mortgages were listed against her for taxation, and that she appeared before the board of revenue and had them removed from the tax lists, but paid the taxes on the Espalla mortgage. Viewing Mrs. Man-, ser’s evidence in the most favorable light, we are of the
We therefore concur with the chancellor in his conclusion, and order an affirmance of the decree dismissing the bill. This conclusion .renders unnecessary a consideration of the defense of “innocent purchaser.”
Affirmed.