Ryall v. Prince

• Decision Date: 26 May 1887
• Citation: 2 So. 319,82 Ala. 264
• Parties: RYALL v. PRINCE.
• Court: Alabama Supreme Court

2 So. 319

82 Ala. 264

RYALL v. PRINCE.

Supreme Court of Alabama

May 26, 1887

Appeal from circuit court, Marengo county.

Action by transferee for amount due for purchase money of land.

This action was brought by A. C. Prince against J. S. Ryall before a justice of the peace, February 8, 1886, and, upon the trial, judgment was rendered in favor of plaintiff, from which defendant appealed to the circuit court. The complaint in the circuit court was filed March 4, 1886, and claimed the amount in controversy under the common counts; and: "(7) Plaintiff claims of defendant forty-five 20-100 dollars, due from him on or about the first day of December, 1884, by virtue of an agreement contained in a deed or sealed paper in writing made and executed on tenth day of [November] December, 1882, by J. E. Prince and Belle Prince on the one part, and J. S. Ryall on the other. Said Ryall bought of J E. Prince certain lands, to be thereafter surveyed, at $12.50 per acre, three-fifths to be paid in cash, and two-fifths on a credit. Said Ryall paid in cash $950 on condition that the excess of cash payment over said three-fifths should be returned to him, if any such existed, after such survey. Such survey was made and gave 113 acres, leaving balance due defendant $103.50, which was paid to him before debt now sued for was due. The debt claimed in this suit became due on the first day of December, 1884. It is now the property of the plaintiff." The defendant pleaded (1) the general issue (2) payment; (3) res adjudicata; (4) former recovery; (5) that the writing declared on in said complaint has not been assigned to plaintiff. The latter plea was verified.

The instrument upon which this suit was founded, and which was introduced in evidence, was executed on November 10, 1882, by J. S. Ryall, defendant, and John E. Prince, and his wife Belle Prince. Said deed sets forth the purchase of certain lands by said Ryall of Prince; and: "Whereas, said Ryall is to pay 12.50 dollars per acre of said lands, three-fifths in cash, and two-fifths on the first day of December, 1887 with interest at the rate of eight per cent. per annum on the deferred payment, payable annually on the first day of December of each year from the year 1883 to the year 1887, both inclusive; and whereas, the number of acres in said tract is to be determined as soon as practicable by the county surveyor of Marengo county, Ala., at the expense of said Prince; and whereas, said Ryall has paid the said Prince nine hundred and fifty dollars in cash, this being the amount of the cash payment, due by said Ryall according to the aforesaid agreement, and the number of acres estimated to be contained in said tract; and whereas, it is agreed that, if said survey proves such cash payment to be too large or too small, the difference is to be made good by the proper [parties] hereto in cash;" and conveys the lands in question for the consideration mentioned and one dollar; said land being taken subject to the mortgage hereafter mentioned. The testimony of plaintiff tended to show that she and her husband conveyed certain premises to said John E. Prince, October 17, 1882; that said Prince mortgaged said lands to secure his note for $3,500, payable five years after date, interest payable annually, on January 1, 1884, 1885, 1886, 1887, and 1888, evidenced by five several coupons, for $200. Shortly after this mortgage was executed, said John E. Prince and J. S. Ryall entered into an agreement, which was carried out by the execution of the deed above set forth. "Plaintiff proved a verbal transfer to her of the claim sued on, and that such transfer was made before suit was brought." An exception was duly reserved to the introduction of this evidence. And that, "as each installment of interest from defendant under his agreement and deed fell due, to-wit, on the first day of December, 1883, 1884, and 1885, she demanded payment of the same from the defendant, and he raised no objection on any score, but simply asked for further time and agreed to pay it." His failure to pay continuing up to February 1, 1886, plaintiff brought a separate suit on each of such installments before a justice of the peace, and recovered judgment in the first suit for the first installment of interest, which said judgment was paid in full and satisfied February 9, 1886. But afterwards on February 23, 1886, to which the two other cases were continued, plaintiff recovered judgment in each case for the several amounts therein sued for, being the installments of interest due on the first day of December, 1884 and 1885, respectively, from which judgments an appeal was taken as to each, and this trial was as to the installment of interest which fell due December 1, 1884. This was all the evidence.

The court gave the general charge at the request of plaintiff and refused a similar charge at the...