54 Ala. 191 | Ala. | 1875
A promise to pay the debt of another, founded on no other consideration than the debt, is a nudum "pactum, no matter what form the promise may_assume.—Beall v. Ridgway, 18 Ala. 117; Rutledge v. Townsend, 38 Ala. 712; Hester v. Wesson, 6 Ala. 415. The note on which the suit is founded, was not given by appellant or accepted by the appellees as payment of the debt of her deceased husband, nor to induce appellees to forbear or suspend any right of action they had on such debt. There is, of consequence, no element of detriment to the appellees from which to deduce a consideration for the note, nor is there any element of benefit to the appellant. • Her possession of the personal assets'^ of her deceased husband — administration not having been granted — is rightful, and she can lawfully hold them against all until an administrator is appointed.—Brown v. Beason, 24 Ala. 466. The real estate, if it is the last residence of the husband, she is entitled to hold in possession until her dower is assigned. If it is not the last residence of the husband, her possession is rightful against all but the heirs to whom the title has descended, until an administrator shall assert his statutory powers over them. Possession of neither was derived from the appellees, and it can form no consideration for her promise to pay the debt of the deceased husband. On the evidence, the note was without consideration. The court erred in the charge given, and the judgment must be reversed and the cause remanded.
