42 Ala. 149 | Ala. | 1868
The probate judge attained the conclusion, from the evidence, that the note of appellee to Joseph B. Marshall, for two thousand nine hundred and fifty-seven dollars, dated August 15th, 1863, and due one day after date, was given with the understanding between the parties at the time of its execution, that it should be discharged by a payment in Confederate currency or treasury notes ; and, consequently, charged the executor, not with the full amount of said note, but with the value of the amount thereof in Confederate money, estimating such value as of the date of the note.
The question for our determination is, whether, under the evidence, this action of the probate court was correct. We think it sufficiently appears from the evidence, all of which is set out in the record, that the note in question was not based on any original contract entered into between the parties at the time of its execution; but that the note was given on account of pre-existing debts, due by the appellee to Joseph B. Marshall. The former had been the guardian of the latter, and the ward became of age on the 19th of June, I860. On the 21st of the same month and year, the parties had a settlement, by which it appears, that appellee, on account of his guardianship, was then indebted to Joseph B. Marshall, in the sum of two thousand four hundred and one 50-100 dollars, for which sum he executed to Joseph B. Marshall his promissory note of that date ; whereupon the latter executed to the former his receipt, which is as follows :
“ Received of John L. Marshall, his note of this date for the above amount of twenty-four hundred and one dollars*151 and fifty cents, it being in full of all claims against him as guardian, this 21st June, 1860.”
(Signed,) Joseph B. Marshall.
It seems that after this settlement had been made, appellee became further indebted to Joseph B. Marshall for negro hire ; for on the 15th of August, 1863, the latter executed to the former, a receipt which is as follows :
“ $350 — Beceived of John. L. Marshall, three hundred and fifty dollars, it being for the hire of my negroes for the year 1862 ; ISthAugust, 1863.”
(Signed,) J. B. Marshall.
The amount of this receipt, and the amount of the note and interest for $2,401 50, given, on the settlement of the guardianship accounts, when added together, make an aggregate amount, not very materially variant from the amount of the note for $2,957 00; and they doubtless constituted the sole consideration of the last mentioned note. And this conclusion is strengthened by the further facts, that the note for $2,957 00 bears even date with the receipt for $350 00, and that the note for $2,957 00, purports on its face to be given “ on settlement up to that date.”
Such being the only legitimate conclusion that can be drawn from the evidence, what should have been the action of the probate court in the premises ?
The note for $2,957 00 was not payment of the pre-existing debts for which it was given, unless there was an agreement to receive it as payment; and the taking of said note did not even raise the presumption of such payment.— Mooring v. Mobile Marine Dock & Mutual Insurance Co., 27 Ala. 254.
There was no evidence whatever of any agreement of the character named, and it follows that the action of the probate court, in relation to the matter under consideration, was erroneous. The executor should have been charged, under the evidence, with the amount of the note for $2,401 50, and interest thereon. — Ordinance No. 26, of the Convention, Bevised Code, p. 58, “to ratify certain acts, judgments, and other proceedings therein mentioned,” had no application to this note, which was executed before Confederate currency was known; and if the executor had
It results that the decree of the probate court must be reversed and the cause remanded.
