Bird v. Daniel , 9 Ala. 302 ( 1846 )

COLLIER, C. J.

1. It was not necessary to declare- upon each note in a separate count. If authority be demanded upon this point, the case of Dade v. Bishop, Minor’s R. 263, is conclusive. There, one count in assumpsit, described four promissory notes, for fifty dollars each ; and the court held, that the declaration was unexceptionable.

2. In respect to the description of the notes in the declaration, we think it was entirely sufficient. It is alledged, that all of the notes bear the same date, (which is explicitly stated,) and made payable to the plaintiff; three of them payable on the 1 st day of December, 1842, are for the sum of forty-five dollars each; four of them for the same amount each, are payable on the 1st of December, 1843, and one of them for the sum of twenty-five dollars, payable on the latter day. All these notes, with the exception of one of the forty-five dollar notes, payable on the 1st December, 1843, were laid before the jury, to sustain the plaintiff’s cause of action. As the notes are entirely disconnected with each other, we think the production of seven entitled the plaintiff to recover pro tanto. The failure to produce the eighth note, was not a variance which would authorize the exclusion of the notes correctly described.

3. The question raised at the bar, by the plaintiff in error, upon the statute of frauds, is not presented by the record. There is nothing to show that the sale of the land was not evidenced by writing, so as to take the case out of the statute. For any thing appearing to the contrary, the heirs of Kelly who had attained their majority, may have appointed the plaintiff their agent to sell the land, by writing under seal ; or if no such appointment was made, they may have subsequently recognized his authority, and executed a conveyance in due form to the defendant. ..

As the case is stated in the bill of exceptions, it is simply this: the defendant has purchased a tract of land, executed his notes for the purchase money, taken possession, and still retains it; some of his vendors being yet in their minority, he objects to the payment of the notes. This is nothing more than the common case of the vendee of land attempting to resist an action at law, for defects in the title, without having rescinded the contract and renounced the possession. We have repeatedly held, that the remedy of the vendee, in such case, cannot be made available by way of defence to a suit for the purchase money; but Chancery is the proper forum in which he should seek redress, The fact that some of the heirs were infants, and no administration was granted upon the intestate’s estate, cannot make these principles inapplicable.

4. Conceding that the plaintiff is not entitled to the proceeds of the note when collected, we think it competent for him, as its payee, to maintain an action thereon in his own name. Mauran v. Lamb, 7 Cow. Rep. 174, is an authority to show, that an agent may maintain a suit upon an indebtedness acknowledged in writing.

The consequence is, that the judgment of the Circuit Court must be affirmed.