Young v. Garber

• Decision Date: 19 December 1906
• Parties: YOUNG ET AL. v. GARBER.
• Court: Alabama Supreme Court

42 So. 867

149 Ala. 196

YOUNG ET AL. v. GARBER.

Supreme Court of Alabama

December 19, 1906

Appeal from Circuit Court, Hale County; B. M. Miller, Judge.

Action by J. B. Garber against H. T. Young and another for money had and received. From a judgment for plaintiff, defendants appeal. Affirmed.

The case was tried upon the following agreed statement of fact On the 19th day of December, 1900, George Washington owned a certain piece of land, which on said day he rented to Margaret Williams, for the year 1901, for 750 pounds of middling lent cotton, or its equivalent in money at 9 cents per pound, at the option of the holder of the note. That before the maturity of said note the lands belonging to George Washington were sold under execution, and the defendant Georgia Young became the purchaser thereof, and had a good and lawful conveyance therefor, under execution sale. That H. T. Young, for Georgia Young, on the day after the maturity of the note, collected the rents, to wit, $60, and has not accounted to the plaintiff for the same. That prior to the institution of the suit, that resulted in a judgment against Washington and the subsequent sale under it, the note made to Washington was transferred to plaintiff in the usual course of trade and for a valuable consideration. The defendants knew nothing of the transfer of the note to plaintiff at the time the rent was collected.

Thos E. Knight, for appellants.

De Graffenreid & Evins, for appellee.

SIMPSON J.

This was an action for money had and received, brought by the appellee (plaintiff) against the appellants (defendants). The amount in controversy was originally due on a note given by one Margaret Williams to one Washington, who at that time was the owner of the land, which note was, for a valuable consideration, and before its maturity transferred to the plaintiff. After said transfer of said rent note, the land, for the rent of which the note was given, was sold under an execution against said Washington to the defendant, and said defendant, without notice of the transfer of said rent note, collected the amount of rent due by the tenant. The only question argued by counsel is as to the right of the plaintiff to recover said money in this form of action.

It is insisted on the part of the appellants that the plaintiff could not recover in this form of action, because the action of assumpsit, for many had and received, rests upon an implied promise; and the case of Lockard v. Barton, 78 Ala. 189, and others, are cited to the point that a party who has collected rents, under claim of right, while occupying the land in question adversely to the party entitled,...