67 So. 235 | Ala. | 1914
This bill sought, and tbe decree, below made effective, a lien, in favor of complainant
The conclusion there prevailed: “That there was a complete novation of the original contract of indebtedness of Lasseter to the bank when the bank took his (Lasseter’s) liability as an indorser to the note in question and discharged him of. his primary liability as'a maker of the note February 28, 1912. The novation of the contract of indebtedness of Lasseter to the bank was made after notice to the bank of the hypothecation of the stock by Lasseter to Jackson. * * *”
In order to sustain the view prevailing below, it must be found from this record that there was an intent, common, at least, to the banking company and the original debtor, that the original contract of February 27, . 1912, was extinguished by the dealings of March 28,
It there appears that the dealing of March 28, 1912, was an extension of original obligations, both from Lasseter and the Hill Crest Land Company; and .that the note of the last-named date, signed by Lasseter as indorser, was “an extension of a note given by L. Lasseter for money loaned him on the 27th day of February, 1912.” These terms affirmatively exclude the the idea that the original obligation of February 27, 1912, was intended to be extinguished. On the contrary, the process and intent was to continue that obligation, and not to substitute for it the contract or contracts of March 28, 1912. We do not find in the record any evidence of the surrender by the banking company of the note of February 27, 1912. If Lasseter had not become a bankrupt, and the banking company had sued him on the note of February 27, 1912, he could not, on the facts here disclosed, have sustained a defense that his liability under the contract of February 27, 1912, had been extinguished by the subsequent acts and dealings of March 28, 1912. The fact that the banking company accepted, on March 28, 1912, cumulative security, whereon Lasseter was an indorser of the note of the Hill Crest Land Company, does not, of course, establish an intention on the part of the banking company, the creditor, to- substitute the latter obligation for the former. The result is that, even though notice of the transfer of the shares of stock by Lasseter as collateral for the note given by him to appellee was effectively given the banking company’s officer and representative on March 12, 1912, the lien of the banking company had theretofore attached to the stock, in virtue of the stat
“(2) The foregoing rule applies in this case, where the defendant became surety for the debtor on a note given to his commission merchant, with whom he had a running account for advances made, cotton sold, etc., on which the note was credited when received, and debited when due; an account current being rendered to the debtor after the maturity of the note, showing a balance against him larger than the amount of the note, and the subsequent payments being credited on general account.”
After restating the substance of the rule reproduced above, reference thereto was thus made in Stickney v. Moore, 108 Ala. 590, 597, 19 South. 76, 80: “This prin
Of course, before there can arise in any case a question as to the application of payments, there must be a payment; that is, the delivery by the debtor or his representative of money or some other value with the intention on the part of the debtor to pay the debt in whole or in part and the acceptance thereof, by the creditor, as payment. — Smith v. Pitts, 167 Ala. 461, 468, 52 South. 402. An inquiry of payment vel non comprehends the ascertainment of intention. — Lee v. Green, 83 Ala. 491, 3 South. 785. Under the agreed .statement of facts, particularly the features thereof before referred to in this opinion, there was no intention to satisfy and extinguish the obligation of which the .dealing of March 28, 1912, was a continuation — an extension.
The lien created by the statute (section 3476) attached before notice was given appellant of the transfer of the stock to appellee; and it was not extinguished by probation or payment of the indebtedness by the dealings of March 28, 1912. The decree is laid in error. It is reversed, and a decree will be here entered denying the relief prayed in the amended bill.
Reversed and rendered.