Nelson v. Warren

• Decision Date: 25 November 1890
• Citation: 8 So. 413,93 Ala. 408
• Parties: NELSON v. WARREN.
• Court: Alabama Supreme Court

8 So. 413

93 Ala. 408

NELSON v. WARREN.

Supreme Court of Alabama

November 25, 1890

Appeal from circuit court, Shelby county; LEROY F. BOX, Judge.

The three charges requested by the claimant, and refused by the court, are as follows: "(1) The court instructs the jury that all the written transactions between Randall and Nelson introduced in evidence, are binding in law between them, and the jury may look to this as tending to show the good faith or not of the transactions. (2) The court instructs the jury that, under the evidence in this case, Warren had the right under his execution to pay Nelson the amount owing on the debt secured by the mortgage from Randall and his wife to Nelson, and then sell all of the property embraced in said mortgage. (3) If the jury believe the testimony of E. L Nelson as set forth in the showing, then the verdict will be for the claimant, E. L. Nelson; and it is the duty of the jury to believe the testimony of said Nelson in the absence of evidence or facts tending to show his testimony to be false."

Tompkins & Troy, W. R. Oliver, and W. S Cary, for appellant.

STONE C.J.

The present suit was a trial of the right of property; B. B Warren being plaintiff in execution, and E. L. Nelson the claimant. The question litigated was the bona fides of certain conveyances from Randall, the defendant in execution, to Nelson, the claimant. These conveyances were assailed as fraudulent, and the testimony had reference to that issue. Three instructions were requested by the claimant, and they were all refused by the court. The language of the record, which brings this question before us, is as follows: "The claimant asked, among others, the following charges in writing, which the court refused to give, and the claimant excepted to the refusal of the court to give said charges asked by him in writing." Under all our rulings, this is a single exception to a batch of charges, and will not avail as a ground of reversal, unless all the charges are faulty. 3 Brick. Dig. p. 80, §§ 34, 41. Neither of the charges asked should have been given. The fact that a contract is binding between the parties making it does not tend to show the good faith of the transaction as against a creditor of the seller who seeks to subject the property to the debt of such seller. It is certainly true that Warren could have paid off Nelson's demand, and, having done so, could have sold the property embraced in...