Stark v. Henderson , 30 Ala. 438 ( 1857 )

STONE, J.

In the case of Lanier v. Hill, 25 Ala. 554, this court passed upon the identical contract presented by this record, and held, that the purchaser was entitled to relief in equity. That decision is decisive of this case, unless the giving of the new note places Henderson’s rights on a firmer footing.

It is contended for Henderson, that in ignorance of any defense to tbe first note, be did, at tbe instance of Stark and Bawls, dismiss bis first suit, and extend tbe debt by taking a new note; that be thus surrendered bis right to take judgment in tbe suit then pending, and, in effect, gave indulgence for two years longer. We need not now decide, what would be tbe effect of this view of tbe case, if sustained by tbe record. See Bullock v. Ogburn, 13 Ala. 346 ; Holt v. Robinson, 21 Ala. 106; Finn & Dulany v. Barclay, 15 Ala. 626. Tbe appellee stands in no such attitude. Notwithstanding tbe denials in Henderson’s answer, tbe testimony of tbe witnesses Q-resham, Neal, Lanier, and Slaughter, forces upon us tbe conclusion, not only that Henderson knew of tbe defense to tbe first note, but that, in fact, be took tbe new note in tbe hope of thereby cutting off that defense. Although these witnesses depose only to conversations and admissions of Henderson ; generally tbe weakest of evidence; yet, with most of them, there were circumstances calculated to impress tbe memory. We think they fully overturn tbe answer.

Hill, as administrator with tbe will annexed, bad no authority tó make sale of tbe land. Tbe first note was, therefore, without consideration. Tbe artifice by which Henderson obtained tbe second note, cannot place Mm in a better position than that occupied by Hill. — See Finn & Dula y v. Barclay, supra.

Tbe decree of tbe chancellor is reversed, and tbe cause remanded for further proceedings in accordance with this opinion.

Bice, C. J., not sitting.