Wilkinson v. Buster

• Decision Date: 28 November 1899
• Parties: WILKINSON ET AL. v. BUSTER.
• Court: Alabama Supreme Court

26 So. 940

124 Ala. 574

WILKINSON ET AL. v. BUSTER.

Supreme Court of Alabama

November 28, 1899

Appeal from circuit court, Lawence county; H. C. Speake, Judge.

Action by Wilkinson, Banks & Co. against Samuel M. Buster. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This action was brought by the appellants against the appellee and counted upon two promissory notes, alleged to have been executed by the defendant. The notes bore date February 7 1893. The defendant interposed, among others, a special plea of infancy, in which he alleged that at the time of the execution of said notes he was under 21 years of age. To this plea the plaintiffs filed several replications, in which they averred: (1) That the defendant's disabilities of nonage had been removed by a decree rendered in the chancery court of Lawrence county, Ala., in June, 1892; (2) that the defendant was not a minor under 21 years of age at the time of the execution of said notes, his disabilities of nonage having been removed by the decree of the chancery court; (3) that the defendant represented to the plaintiffs that his disabilities had been removed, and that he was competent to contract, and plaintiffs relied upon such representation, and contracted with him. The defendant interposed demurrers to these several replications, which were overruled, and thereupon the defendant filed several rejoinders, which were in substance, as follows: (1) That the notes sued upon were executed in the state of Tennessee, and were made payable in Tennessee; that the defendant was under the age of 21 years when he signed the notes, and that the decree of the chancery court of Lawrence county, Ala., had no extraterritorial force or effect, and therefore constituted no answer to the plea of infancy. (2) In addition to the facts averred in the first rejoinder, it was further alleged that the defendant's disabilities were not removed in the state of Tennessee. (3) The succeeding rejoinders were, in substance, the same as the first and second, except that they further averred that the defendant's disabilities were removed in June, 1892, by the decree of the chancery court of Lawrence county, Ala that the defendant afterwards moved to the state of Mississippi, and resided there, and that it was while residing in Mississippi that he executed the notes sued on in Tennessee; and that no certified copy of the decree had been filed in the office of the judge or probate of Shelby county Tenn., where the notes were executed, and in the county of Mississippi where he resided. After the demurrers were overruled to the rejoinders, the plaintiffs filed surrejoinders, which were, in substance, as follows: (1) The defendant executed the notes in Shelby county, Tenn., where they were made payable, and was, at the time, a resident citizen of Lawrence county, Ala.; that the defendant's disabilities of nonage had been removed by a decree of the chancery court of Lawrence county, Ala.; that by virtue of said decree he was competent to make the notes sued on, and is now estopped to set up the plea of infancy. (2) The defendant cannot avail himself of a mistake of law, and having intended to make a binding contract, he cannot plead infancy thereto. (3) "That, defendant having represented to plaintiffs that his said disabilities had been removed by said chancery court of Lawrence county, Alabama, where defendant resided at the time of the execution of the notes he is estopped to plead infancy." The defendant demurred to each surrejoinder filed by the plaintiffs upon the ground that they were no response to the rejoinders, and presented an immaterial issue. These demurrers were sustained, and to this ruling the plaintiffs duly excepted. Thereupon the plaintiffs joined issue on the defendant's rejoinders. On the trial of the case it was shown that said notes sued on where executed in Shelby county, Tenn., and were made payable there; and that at the time of the execution of said notes the defendant was not 21 years of age, residing in Lawrence, county, Ala.; that in June, 1892, a decree was rendered by the chancery court of Lawrence county, Ala., removing defendant's...