Moody v. Walker

89 Ala. 619 | Ala. | 1889

STONE, C. J.

If the question was properly raised, we are not prepared to affirm that the attempted emancipation of his minor sons, made by Wilkerson, would or ought to prevail against the claims of his creditors. He did not cast them loose on their own resources, but fed and supported them as members of his own household, and that largely from the very advances for which their crop was sought to be held liable under his mortgage. He also surrendered to them the use of the land and stock, in addition to supporting them; and all this, in consideration that they would cultivate lands which yielded for him about as much as they produced on lands they cultivated for themselves. This was a gift to them of more than their time. It was unquestionably a gift of their support, and of the use of his stock; and for the privilege" of cultivating his land, and enjoying its crops, they agreed to give, and did give him, what was already his, and which he did not surrender, their half-time labor on the land cultivated for him. This case is unlike any we have decided, and is not supported by the current of authority. Godfrey v. Hays, 6 Ala. 501; 41 Amer. Dec. 58; Stovall v. Johnson, 17 Ala. 14; Donegan v. Davis, 66 Ala. 362; Boyett v. Wimberly, 80 Ala. 476; Field on Infants, §§ 67-8; Atwood v. Holcomb, 39 Conn. 270; 12 Amer. Rep. 386; Morse v. Welton, 6 Conn. 547; 16 Amer. Dec. 664; Cloud v. Hamilton, 11 Humph. 104; 53 Amer. Dec. 778; Amer. & Eng. Encyc. of Law, vol. 6, 448, note 3.

The present suit is assumpsit for money had and received. It can not be maintained, unless Walker received money, or property in lieu of money, which ex cequo et bono belonged to Moody; or, unless he is shown to have held the cotton long enough to raise the presumption he had converted it into money. The record affirms it contains all the evidence. The cotton was grown in 1888, and this suit was commenced December 7, 1888. The testimony shows that Walker purchased the bale of cotton from young Wilkerson, and paid him for it. It does not show when he purchased it. It is not shown that Walker ever sold the cotton, or that he had held it long enough to raise the presumption of its sale. There is no proof that he received any money which belongs to Moody, nor in fact that he received any money, at all. He paid out money, if the testimony be believed. Moody’s claim was, at most, an equitable lien on the cotton, which, if valid, would authorize him to bring an action on the case. It could not maintain assumpsit.—Thompson v. Merriman, 15 Ala. 166; Price v. Pickett, 21 Ala. 741; Hussey v. Peebles, 53 Ala. 432; Westmoreland v. Foster, 60 Ala, 448.

The plaintiff showed no right whatever to recover in assumpsit, and the Circuit Court, if thereto requested in writing, might and should have given the general charge to find for the defendant. We will not, therefore, inquire into the correctness of the court’s rulings. Right or wrong, they could not harm the plaintiff.—3 Brick, Dig. 109, §§ 42 et seq.; Ib, 405, § 22,

Affirmed,