Alabama Gold Life Ins. Co. v. Oliver

• Decision Date: 26 May 1887
• Citation: 82 Ala. 417,2 So. 445
• Parties: ALABAMA GOLD LIFE INS. CO. v. OLIVER.
• Court: Alabama Supreme Court

2 So. 445

82 Ala. 417

ALABAMA GOLD LIFE INS. CO. v. OLIVER.

Supreme Court of Alabama

May 26, 1887

Appeal from circuit court, Shelby county.

Action on promissory note by assignee against maker.

This action was brought by the appellant, a domestic corporation suing as assignee, against H. L. Oliver and C. D. Oliver; was founded on the defendant's promissory note for $125 which was dated December 1, 1879, and payable 12 months after date, to the order of T. N. Fowler; and was commenced July 9 1883. On the first trial there was a judgment and verdict for the defendants; but it was reversed by this court on appeal and the cause was remanded, as shown by the report of the case. 78 Ala. 158. Afterwards, as the record now shows, the defendants filed a special plea, averring, in substance that, prior to the execution of said note, H. L. Oliver rented a certain tract of land from Mrs. Rebecca Smith, for a term of one year, commencing on the first of January, 1880; that said contract was by parol only, and no note or memorandum in writing was ever made or signed by any of said parties; that one C. W. Oliver was, at the time said contract was made, in possession of said rented premises, under a contract of lease for the year 1879, and continued in possession until the end of the year 1879; that on December 1, 1879,shortly after said parol contract was made, at the request of Mrs. Smith, defendants executed the note now sued on; that the only consideration of the note was the agreed rent of the land; that C. D. Oliver signed the note only as surety for H. L. Oliver, and was not a party to the rent contract; that after said note was executed, but prior to January 1, 1880, to-wit, on December 14, 1879, C. D. Oliver purchased the rented premises from Mrs. Smith, and she conveyed the same to him by deed duly executed; that C. D. Oliver thereupon took possession of the premises, and H. L. Oliver occupied them as his tenant during the year 1880, and paid him the rent therefor; that H. L. Oliver never entered into possession of the premises until after the sale and conveyance of the same to C. D. Oliver; and that no part of the rent money was ever paid to Mrs. Smith, or to any one else for her. C. D. Oliver also filed a separate plea, setting up the same facts. The plaintiff demurred to this plea: (1) To so much thereof as avers that H. L. Oliver occupied the said premises as the tenant of C. D. Oliver; (2) because said plea fails to aver that said premises were sold to C. D. Oliver before the transfer of said note to plaintiff; (3) because said plea does not deny that the sale of said premises was made subject to the prior lease by Mrs. Smith to H. L. Oliver. The court sustained the demurrer, and the record does not show what other pleas were filed; but there was a judgment on verdict for the plaintiff.

The bill of exceptions purports to set out substantially all the evidence, which showed that the note was given for the rent of a tract of land belonging to Mrs. Rebecca Smith, for and during the year 1880; that H. L. Oliver was the lessee, and C. D. Oliver, who was his father, signed the note only as his surety; that the contract was negotiated between said H. L. Oliver and T. N. Fowler, the payee of the note, who was the agent of Mrs. Smith; that the land, at the time this contract was made, was in the possession of C. W. Oliver, who was a brother of H. L. Oliver, and who continued in possession until about the close of the year 1879; and that H. L. Oliver entered, on or about January 1, 1880, and cultivated a part of the land during the year 1880. It was shown also that after the contract of renting was made, and after the execution of the note sued on, Mrs. Smith sold and conveyed the land to said C. D. Oliver; the contract on her part being negotiated by said Fowler as her agent, and J. W. Lapsley as her attorney. By the terms of the sale and conveyance, the purchase money was $2,500, for which five promissory notes were given, payable January 1, 1881, and each successive year afterwards, with interest from January 1, 1881; and a mortgage on the land was executed by said Oliver and wife to secure the payment of these notes. The deed was dated December 7th, and the mortgage December 17th, but they were delivered at the same time. It was proved that each of these notes had been paid.

The plaintiff read in evidence the note sued on, and two letters written by H. L. Oliver to said T. N. Fowler, one dated November 7, 1879, and the other November 8th. The first letter was in these words: "Your favor of sixth inst. is to hand. I accept your terms, and will send note for joint signature to my father, in Athens, to-day, which he will forward to you." And the other as follows: "Inclosed I hand you the note for the rent of the Smith place, signed jointly by him and me, as per your letter to him. Please acknowledge receipt of same. I have removed on the premises, and shall endeavor to protect the property from waste or injury of any kind." The defendants objected to the admission of each of these letters as evidence, but without stating any particular ground of objection; and they excepted to the overruling of their objections. Said Fowler, whose deposition was taken on behalf of the plaintiff, testified (among other things) as follows: "The reason why said installments of the purchase money only drew interest from January 1, 1880, was because I, as agent for Mrs. Smith, had rented said premises for one year to H. L. Oliver, and he was in possession under said lease; and as I could not give possession to the purchaser until the expiration of the lease, to-wit, January 1, 1881, I agreed that no money or interest should be paid, or begin to accrue, until the lease expired, and I could put the purchaser in possession. The note in suit was executed prior to the sale of the property, or any negotiations looking to said sale. *** The Alabama Life Insurance Company became the owner of said note before said sale, and is now the owner. At the time of said sale to C. D. Oliver, nothing was said about said note by him or me. He did not claim or demand its surrender to him; did not claim that it should go to him as a part of the demise; did not inquire who held it; and did not repudiate his liability therefor." It was proved also, on the part of the defendants, "that said contract of renting was by parol, and there was no note or memorandum thereof signed by Mrs. Smith, or by any one authorized by her in writing." H. L. Oliver testified, on behalf of the defendants, "That he went into the possession of the premises about January 1, 1880; that he received possession from C. D. Oliver, his father, who held a deed to the place from Mrs. Smith; that he remained in quiet possession and enjoyment of said premises during the entire year, 1880, and had paid rent for the premises to his father." W. R. Oliver, a brother of H. L. oliver, also testified, on behalf of the defendants, that he occupied and cultivated a part of the land during the year 1880, as a tenant of his father, and paid rent to him; also that H. L. Oliver also occupied a part of the premises, and paid rent to C. D. Oliver. The deposition of C. D. Oliver was taken by the defendants, and was read in evidence for them; the fourth interrogatory to him, and his answer thereto, being as follows: " Interrogatory 4. State why, and for what purpose, you made, or joined in making said note? Answer to fourth interrogatory. At the time I joined in making said note I was living in Huntsville, and said H. L. Oliver, my son, was living in Shelby county. Being informed by him that the Smith place could be purchased on moderate terms, I wrote to him that we would rent the place for the year 1879, [1880?] in order to secure the possession and be certain of it until I could come down and negotiate the purchase through Col. Lapsley, who was the agent of Mrs. Smith. A few days after my said son and I made said note to T. N. Fowler, whom I knew to be the agent of Mrs. Smith, I came to Shelby county, and, through Col. Lapsley, submitted my propositions for purchasing the place, which were accepted."

On this evidence the court charged the jury ex mero motu: "Although the jury may believe that C. D. Oliver bought the land on the ninth December, 1879, and took possession under his purchase, and rented a portion thereof, for the year 1880, to W. R. Oliver, and another portion to said H. L. Oliver, and that they occupied said lands during that year under said C. D. Oliver, yet, if they further believe that the note sued on was transferred to plaintiff for a valuable consideration, before said purchase, and that said C. D. Oliver knew of such transfer at the time he made said purchase, then they must find a verdict for the plaintiff against each of the defendants."

The defendants excepted to this charge, and requested the court in writing, to instruct the jury as follows: "Although the jury may believe, from the evidence, that C. D. Oliver bought the land, for the rent of which the note sued on was given, with the knowledge that said land was rented to said H. L. Oliver for the year 1880; yet if they further believe that said C. D. Oliver took...