Ryall v. Prince, 82 Ala. 264

Ryall v. Prince

82 Ala. 264 | Ala. | 1886

SOMERVILLE, J.

— Tbe action is one originally commenced in a justice’s court, being brought by the plaintiff as the transferree -of a certain sum due by the defendant for the purchase-money of land, and payable by the vendee to the vendor in annual-installments. The promise to pay is evidenced by a covenant of the vendee contained in a deed, which is signed both by him and the vendor. The transfer to the plaintiff was verbal, and not by assignment in Writing.

It is insisted that the rule of the common law applies, that a stranger to a deed can not sue upon a covenant between the parties to the instrument, although it may enure to his benefit. — Douglass v. The Branch Bank, 19 Ala. 659: The chief reason of this rule was, that, at common law, an action on a contract, whatever its nature, was required to be brought in-the name of the party in whom the legal interest was vested. This rule is now modified by statute in this, and many other States. The provision governing actions in -justices’ courts,- is -found embodied in section 3603 of' the present Code, and declares that “ all actions brought before justices of the peace, founded on any contract, express or implied, must be brought in thé name of the party really interested therein, whether he have the legal title-or not.” Code, 1876, § 3603.. This section is manifestly broader in its scope than the analogous one applicable to actions brought in the Circuit Court, which provides that contracts “ for the payment of money” only shall be “ prosecuted in the name of the party really interested, whether he has the legal title or not.” — Code, 1876, § 2890 ; Levystein v. Marks, 56 Ala. 564. The present action was one on a written contract for the payment of money, and the plaintiff was the party really and beneficially interested in it. It was, therefore, properly brought in heir name, under either of the foregoing sections of the Code. . The plaintiff acquired at least an equitable title in the claim sued on by the verbal transfer made to her, and this was sufficient to maintain the action.— Carter v. Owens, 41 Ala. 217; Wood v. Cosby, 76 Ala. 557. No written assignment was necessary. This is requisite only where the contract sued on is for the performance of some act or duty other than the payment of' money. — Skinner v. Bedell, 32 Ala. 44; 1 Brick. Dig. 27, §103; Flexner v. Dickerson, 65 Ala. 72; Agnew v. Death, 63 Ala. 345; Code, 1876, §§ 2890, 3603, 2099.

2. The contract being to pay in annual installments, each default of payment was a separable and distinct demand, and the foundation of a distinct cause of action. It is only an indivisible and entire cause of action which can not be split up or divided into several causes of action, so as to *267authorize a recovery for divided parts of it. Where a sum of money is payable in installments, the rule in this State is to consider each default of payment a separable and disconnected cause of action, upon which a separate suit may be brought just as if each installment was evidenced by a separate coupon. This view is in harmony with our own decisions, although a contrary doctrine prevails in some of the other States.— Wilkinson v. Black, 80 Ala. 329; Strauss v. Meerteif, 64 Ala. 299; Davis v. Preston, 6 Ala. 83; Robbins v. Harrison, 31 Ala. 160. Cases of this kind are entirely unlike that of a continuous running account between the same parties, which is not susceptible of division, and involves only a promise to pay in the aggregate, and not for each separate item.— Oliver v. Holt, 11 Ala. 574. The agreement to pay in separate installments was the concurrent act of the creditor and debtor, by which they divided one debt into several debts, thereby authorizing as many separate actions as there were installments, each being within the lawful jurisdiction of a justice of the peace, at the option of the plaintiff. — Herrin v. Buckalew, 37 Ala. 585.

We find no error in the rulings of the court, and the judgment must be affirmed.