Knight v. Colman

• Decision Date: 06 January 1898
• Citation: 117 Ala. 266,22 So. 974
• Parties: KNIGHT v. COLMAN.
• Court: Alabama Supreme Court

22 So. 974

117 Ala. 266

KNIGHT v. COLMAN.

Supreme Court of Alabama

January 6, 1898

Appeal from chancery court, Mobile county; W. H. Tayloe, Judge.

Bill by J. S. Knight, administrator of the estate of A. G. Smith deceased, against Elvira Colman, to foreclose a mortgage. From a decree for defendant, complainant appeals. Reversed.

This bill was filed June 29, 1896, to foreclose a mortgage made by the defendant on April 4, 1893. The averments of the bill contained in the three paragraphs thereof consist in the very succinct statement that complainant is the administrator of A. G. Smith, deceased, who died intestate on April 19, 1896 that letters of administration were granted to complainant by the probate court of Mobile county on June 10, 1896; that there came into complainant's possession, as part of the assets of said estate, a mortgage bearing date April 4, 1893 signed by Elvira Colman, wherein she mortgaged to said Smith to secure a note for $1,000, of even date therewith, the land described, which note and mortgage are attached as exhibits to the bill, and that said note is now long since past due, and is still unpaid. The note reads: "Mobile, Ala., April 4, 1893. One year after date, I promise to pay to A. G. Smith, or order, the sum of one thousand dollars, with interest at six per cent. per annum from date. Elvira Colman." The mortgage recites: "Whereas, the said A. G. Smith has, on the day of the date of this instrument, loaned the said party of the first part the sum of one thousand dollars, payable one year after this conveyance, with interest at the rate of six per cent. per annum from the date hereof, as evidenced by a promissory note drawn by the said party of the first part, and payable to the said party of the second part, or order, for the sum of $1,000, with interest at six per cent.," etc.: "Now, if the party of the first part shall well and truly pay the party of the second part said sum of money mentioned in said promissory note at maturity" etc. The defendant, in her answer, set up three defenses to the maintenance of the bill: The first, want of consideration; second, coverture; and, third, infancy. The other facts of the case are sufficiently stated in the opinion. In the deposition of the defendant, she testified to certain declarations and transactions had between her and the complainant's intestate, which led up to the execution of the mortgage which is sought to be foreclosed. There were exceptions reserved to the allowance of this testimony. Upon the final submission of the cause upon the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for. From this decree the complainant appeals, and assigns the rendition thereof as error.

R. T....