Nance v. Gray, 143 Ala. 234

143 Ala. 234 | Ala. | 1904

SIMPSON, J.

As the arguments of counsel do not follow the assignments of error, in order, we will take up the points contended for in the order presented.

The first contention of appellant is that the allegata and probata do not correspond, because the copy of the note of October 14, 1897, as set ont in the original bill, in the first call in the description of the land was the “South quarter” of section 30, and the original note, in the record has the “Southwest quarter” of sectiqn 30. (The word “west” being written with different ink apparently and evidently written after the’ original writing of the note, as it runs up above the line and is written across the bracket enclosing the quarter).

The deposition of W. H. Cooper fully identifies this note as the one which ivas given for the payment of balance due on the land, and it would only have been necessary to amend the pleading slightly to make it conform exactly to the exhibit, and whether the word “west” was in it or not at the time of its delivery, would not have changed the legal effect of the transaction. The variance is immaterial. — Lazier v. Wescott, (26 N. Y. 146), 82 Am. Dec. 405; Deakin v. Underwood, (37 Minn. 98), 5 Am. St. Rep. 827.

Under the original transaction in this case, the vendor had an equitable mortgage on the land, and the settlement, and giving of the deed and making of the note changed the equitable mortgage into a vendor's líen, ana, in either event, the c/raramen of complaint’s claim was that the land had been sold and the purchase money not all paid, which could be sustained by proper proof either with or without the note. — Hester v. Hunnicutt, 104 Ala. 282; Culver v. Caldwell, 137 Ala. 125.

As to the effect of the alteration of the note, by writing the word “west,” (admitting that it was an alteration after delivery) we hold that it is not a material alteration. The obligation of the instrument would have been just as strong without any description of the land, which was merely put in the note t.o identify it as the note which was given for the balance due on the land.

In the case of Alabama State Land Co. v. Thompson, 101 Ala. 570, the Court held that the alteration of the deed itself, even in a material point, did not divest the title to the land, and that the altered deed could be adduced. as a memorial of the. conveyance.

In the case now under consideration the note was not the basis of the claim for.recovery, the suit being to enforce the lien which the law gives, whether there be any note at all or not.

The next insistence of appellants is that the notes for which the lien is claimed, were made np of items of amounts due for personal property intermixed with the amount due on the land so that it is impossible to separate them, and that thereby the entire lien was lost.

The only i>roof of any intermixture relates to the original transaction between W. P. Cooper and Nance, at which time Cooper still held the title to the land and had given only a title bond, so that the lien then held was in the nature of an equitable mortgage and would be as good for the personal property as the land, if the land was not to be conveyed until it was all paid. But, in addition to that, the witness McLellen, who was present, assisted in making the calculations and wrote the endorsement of credit on the bond, says that “All claims were settled, and, after paying all other claims, the balance due on the land was $413.61, * * * * All other items were paid in full, and the balance due was on the land.” It is certainly within the power of the parties to the transaction, whether it be in cases of an equitable mortgage or vendor’s lien, to appropriate payments to- the amounts due for personal property, and-leave the balance due on the land debt.

So that, whatever view Ave take of it,, the land was burdened with the lien, when W. H. Cooper, as executor, took charge of it, and he testified that he simply executed the deed and took the note of October 14, 1897, for the amount due on the final payment of the land. There was no such intermixture as to invalidate the lien. — Bankhead v. Owen, 60 Ala. 457, 466-7; Hester v. Hunnicutt, supra.

Appellant claims that, at the time the note in question (that is the $555.66 note) was transferred to complainant, said W. H. Cooper had not qualified as executor, and yet his only claim to the title to the land is based, on the deed made by said Cooper, at the same time to defendant Nance, so that, if that be true and the contention of appellant correct, Nance and his vendee never acquired any title to the land, and the only rights which any of them could claim would be under the original title bond, and the note or indebtedness under it still remains due. .As a matter of fact the testimony of complainant shows that, while the deed to Nance was made before the letters testamentary were issued to W. H. Cooper, yet the note was not transferred to complainant until after said Cooper was qualified as executor.

• But however this may be, we hold that the letters testamentary which were issued to Cooper related back and validated his acts as executor cle son tort before. — Hatch v. Proctor, 102 Mass. 353; Alrord v. Marsh, 12 Allen, 603; Vroom v. Van Horn, 10 Paige 549; Walker v. May, 2 Hill Ch. (S. C.) 22; Stagg v. Green, 47 Mo. 500; McDearmon v. Maxfield, 38 Ark. 631; 11 Am. & Eng. Ency. Law, p. 1355; Ward v. Borill, 10 Ala. 200.

The executor has the full legal title to choses in action and debts due the deceased and may release, compound, discharge and transfer them, he being answerable for improvidence in the exercise of that power. — Waring v. Lewis, 53 Ala. 616; Van Hoose v. Bush, 54 Ala. 343; Baldwin v. Hatchett, 56 Ala. 461; Hutchinson v. Owens, 59 Ala. 326; Nelson v. Stolenwerk, 60 Ala. 140; Skelton v. Carpenter, 60 Ala. 201.

It is insisted next that the note, which evidences the debt, is a renewal of the original note of $413.61 and. that note was tainted with usury.

The only allegation in regard to usury in the pleading is the plea filed by Jas. A. Nance, which alleges that “Said note (referring to the $555.66 note) * * * is usurious and void for the interest thereon, and that usurious interest has been included therein in the sum of $500.(10.” And all the evidence on the subject of usury is that Nance states, in his testimony, that his recollection is that, when the settlement was made between him and W. P. Cooper, (when the $413.00 note was given), he was charged 10 per cent interest; and the witness Mc-Lellen states that his recollection is- that, at that settlement, Nance was charged 10 or 12 per cent, interest.

When one who claims to have made usurious payments on a debt seeks credit thereon, the law requires; 1st, that he set out in his pleading, distinctly and correctly, the terms and nature of the usurious agreement, and the amounts of payments made which are .claimed .to be usurious; 2nd, that proof be made with the same definiteness. — Munter v. Linn, 61 Ala, 492; Woodall v. Kelly, 85 Ala, 368.

We do not think that the usury is either alleged or proved with the distinctness which the law required. There is no statement to show what the various payments, charges and credits were, which went to make up that settlement, with their dates, from which a calculation could be made with any degree of accuracy showing what amount of interest was included in that settlement.

It is not claimed, nor is there any evidence to show, that there ivas any usurious agreement in the contract as originally made, when the title bond was given.

When the original transaction is not usurious, a subsequent agreement to pay illegal interest, in consideration of forbearance, etc., does not import to the contract the taint of usury. — Van Beil v. Fordney, 79 Ala. 77; Woodall v. Kelly, 85 Ala. 368.

There is really no proof of any agreement to pay illegal interest in .this case, the only proof being the statement of the two witnesses that, according to their recollection, 10 or 12 per cent was charged in the settlement between the testator and Nance. The defense of usury was personal to Nance at any rate. — Cook v. Dyer, 3 Ala. 643; Feuns v. Sayre, 3 Ala. 458; Harbinson v. Harrell, 19 Ala. 753; Gray v. Brown, 22 Ala. 262; Cain v. Gimon 36 Ala. 168; Griel v. Lehman, 59 Ala. 419; Butts v. Broughton, 72 Ala. 294; Moses v. H. B. & L. A., 100 Ala. 465.

As hereinbefore shown, the note was transferred to complainant, after W. H. Cooper qualified as executor, and he had the entire control of it, with power to' dispose of it. Afterwards he made a final settlement of his executorship, in which he charged himself up with the full amount of this debt, so that the estate has been fully paid by W. H. Cooper, who, having accounted for it, became the owner of the obligation. Nance has nothing to complain of, as the land is liable for the debt and he showed a willingness to appropriate it for its payment. The note has never been paid to Cooper or his assignee.

The defendant. Mar tin had knowledge, of the fact that the Nance note was out against the land. He was also a party to Hie settlement, liy which W. H. Cooper charged •himself up with the sale of the Nance note, and he claims that bis supposed purchase of the land ivas only for the-purpose of paying therewith this very note, and, since the estate lias been satisfied and the complainant is the only party unpaid — lie was entitled to the decree.

The decree of the court is affirmed.

McClellan, C. J., Tyson, and Anderson, J.J., concurring.