Wright v. Wright , 37 Ala. 420 ( 1861 )

R. W. WALKER, J.

In Stow v. Bozeman, (29 Ala. 397,) it was held, that in making an abatement of the pui-chase-money,- it is a proper method of computing interest, to divide the amount of the damages by the number of notes originally given for the purchase-money, and to allow interest on each sum from the time tbe notes respectively fell due. In that case, the notes given did not bear interest before their maturity ; aud the rule adopted was undoubtedly tbe correct one, and should govern in all similar eases. But in the present case, (treating the difference of two days between tbe 1st and 3d January, 1855, tbe clay of the maturity of the first note, as merely nominal,) all tbe notes were made to bear interest from tbe 1st January, 1855 ; and it is fair, that the interest on tbe amount which tbe complainant was entitled to have deducted from the purchase-money, should be computed from the same time. The chancellor, however, allowed interest on the deduction' only from the'1st‘January, 1857, which .was the date of the maturity of the last note. In this there was error.

' There is no averment in the bill of mistake, as to the use .of:the- word eight, instead of eighty; no complaint of damage, on account of the use of that word in the description . of' the land ; no allegation “that defendant had over been called on to correct the mistake, and no prayer to have it corrected. 'The appellant is,‘therefore, not in a situation: to complain of the failure of 'the court to decree the correction of this mistake. 'There is nothing in the other assignments of error.

For the error pointed out, 'the- decree must be reversed, and a decree here rendered," the same in all respects as the decree in the court bélow, except that the injunction shall extend'to the sum of'$825, with interest from the 1st January,'1855, instead of the 1st of January, 1857 ; this decree to take effect as of the -3d May, 1859. The costs of . the appeal must be equally divided between the appellants .and appellee.'