Sherrer v. Enterprise Banking Co.
| Decision Date | 20 May 1909 |
| Citation | 160 Ala. 329,49 So. 779 |
| Parties | SHERRER v. ENTERPRISE BANKING CO. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.
Action by G. L. Sherrer against the Enterprise Banking Company on the common counts. There was judgment for plaintiff, and upon motion the court set aside the judgment, and plaintiff appeals. Affirmed.
G. L Sherrer and her sister, Selina D. Adison, were the joint owners of a body of land in Macon county, which they sold to R. W. and Lucinda Hutchins for the sum of $1,600; the transaction being conducted by W. N. Sherrer, husband of the plaintiff. Fifty dollars cash was paid to W. N. Sherrer, and the balance, $1,550, seems to have been collected by the defendant bank on draft attached to the deed sent to the Hutchinses through the bank at their residence, per agreement among the parties. The plaintiff and her sister, Adison, each owned a half interest in the land, and the amount sued for by plaintiff is $800. Plaintiff sought to show that the deed to the Hutchinses was prepared at Notasulga and brought to Enterprise by W. N. Sherrer, who requested one Byrd, a notary public and an officer of the defendant bank, to take the deed to the residence of the plaintiff and sister, and have the deed properly executed, and that in doing so said Byrd was acting as an officer of the state, and not as an officer of the bank; but when the deed was executed it was left with said bank, to be forwarded to the bank at Notasulga, together with a draft for the balance of the purchase money, which was to be collected and deposited to the credit of the plaintiff and her sister. It is not disputed that the defendant bank collected the money and has not accounted to plaintiff for her part of it. The defendant bank sought to show that W. N Sherrer, together with the plaintiff and Selina Adison executed a note and mortgage to one Ramsey for the sum of $1,600. The note was negotiable, and soon after its execution Ramsey transferred the same to the bank, under the following circumstances: W. N. Sherrer applied to the bank to take up the mortgage, which the bank agreed to do and placed to Sherrer's credit a certain amount of money which was paid out on check of W. N. Sherrer to Ramsey, and the mortgage and note transferred to the bank. It is not contended that plaintiff had any part in this transaction. Subsequent to the transfer of the mortgage by Ramsey, the bank made certain advances in money to W. N. Sherrer without plaintiff's assent or concurrence. These advances amounted to $306.50. In addition to this, W. N. Sherrer purchased a house and lot in Enterprise for $1,700, and executed a mortgage to the bank in the sum of $1,925 to pay for such house and lot; the house and lot, together with some personal property, being given for security in the mortgage.
The proof without seeming conflict tended to show that the mortgage executed to Ramsey was given for livery stable outfit purchased by W. N. Sherrer from Ramsey, and the mortgage was executed on plaintiff's land, and that plaintiff and Miss Adison joined in execution of it as sureties for W. N. Sherrer. The defendant contended that it was without notice of the fact that plaintiff was merely a surety thereon, and that by the terms of the mortgage it secured the holder of the mortgage or the assignee thereof not only for the...
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