Manser v. Sims

• Decision Date: 30 June 1908
• Citation: 157 Ala. 167,47 So. 270
• Parties: MANSER v. SIMS ET AL.
• Court: Alabama Supreme Court

47 So. 270

157 Ala. 167

MANSER v. SIMS ET AL.

Supreme Court of Alabama

June 30, 1908

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Elizabeth J. Manser against Shelton Sims and others. From a decree of dismissal, complainant appeals. Affirmed.

Gregory L. & H. T. Smith, for appellant.

James H. Webb and Shelton Sims, for appellees.

DENSON J.

This bill is filed by Elizabeth J. Manser to foreclose two mortgages executed to her--one by her son, Robert H. Manser on the 11th day of March, 1889; and the other by her son-in-law, Stonewall J. Bowles, on the 18th day of November 1889. The mortgagors allowed decrees pro confesso to be rendered against them. The other respondents, Shelton Sims James W. Grove, Alfred D. Shellnut, and Robert E. Terry, claim to have acquired the property mortgaged, through conveyances from the mortgagors to Joseph Espalla, from Espalla to William H. Camp, and from Camp to themselves. All these conveyances were executed after the mortgages sought to be foreclosed. But two defenses are presented by the respondents: First, that they are bona fide purchasers for value and without notice of the mortgages; second, that the mortgages were paid and satisfied by a subsequent note and mortgage executed to the complainant on the 25th day of May, 1891, by Joseph Espalla, who purchased the property from the mortgagors. The chancellor decreed against the foreclosure of the mortgages, and this appeal is prosecuted by the complainant from that decree.

If either of the defenses set up is established by the evidence, the decree should be affirmed. It is conceded that Joseph Espalla owned in severalty the land in controversy from May 13, 1888, to March 11, 1889, and that he was conducting a real estate business during this period. On the latter date Espalla conveyed to Robert H. Manser an undivided one-third interest, and on the 16th of November, 1889, he conveyed to Stonewall J. Bowles an undivided one-third interest, in the land. It is shown without conflict in the evidence that complainant loaned to her son and her son-in-law the money with which to pay Espalla for their interests in the land, and that as a part of their purchase contract Espalla conveyed to them, respectively, the real estate described in the mortgages. The mortgages were not filed for record until the 26th day of October, 1895.

On the 25th day of May, 1891, Robert H. Manser and Bowles reconveyed to Espalla, with other property, the two one-third interests in the property which they had acquired from him, and which is described in the mortgages and the bill; and on the same day Espalla executed to complainant a note in the sum of $8,666.66 and a mortgage to secure it. This mortgage embraced all the property which is included in the mortgages sought to be foreclosed, and the answer avers that "it was given in full satisfaction and settlement of the said indebtedness from Robert H. Manser and Stonewall J. Bowles to complainant."

The case of Day v. Thompson, 65 Ala. 269, cited and relied on by appellant, is one in which the question was whether or not an account due from the defendant debtor to the plaintiff was settled by the acceptance by the plaintiff of a bill of exchange drawn by a domestic bank on a New York bank and indorsed by the defendant. In discussing the law of the case the court said: "It is a well-settled doctrine in the general law commercial, both in England and the United States, that the giving of a negotiable bill or note for an antecedent debt will not operate to discharge such debt, unless it was accepted in absolute payment. Prima facie it is to be considered as collateral or additional security; but by express agreement it may be a satisfaction and a bar." In Keel v. Larkin, 72 Ala. 493, a case which involved the question whether the taking of the promissory note of a debtor by the creditor for an antecedent debt would operate in law to discharge such debt, the trial court gave at the request of the plaintiff charges 2 and 3, which in effect required the jury to find that there was an express agreement to take the note in discharge of the debt before it would operate such discharge. The court, speaking through the same judge (Somerville) who wrote the opinion in Day v. Thompson, after holding that whether a new security, of no higher nature, executed by a debtor, is taken in payment and discharge of a pre-existing debt for which it is given, is a question of intention, and after repeating the law as stated in Day v. Thompson in respect to express agreement, said: "We are also clearly of opinion that it may as well be proved by an implied agreement of the contracting parties. Both express and implied contracts are founded upon the actual agreement of the parties; the only distinction between them being as to the mode of proof or evidence by which they are substantiated. There are, no doubt, some cases so free from ambiguity, or opportunity for inference, as that a court could legally presume such intention; but in all cases of doubt it is well settled to be a matter proper for the determination of a jury, who would have a right to consider all the relevant circumstances of the case throwing any light upon the question of intention. * * * It is true that the English decisions have adopted the view that there must be an express agreement, or else that the bills alleged to have been received in payment must have been negotiated and remained outstanding against the defendant; and some of the earlier American decisions concurred in this doctrine. But, as Mr. Parsons observes (2 Parsons on Bills,...