Hollifield v. Wilkinson , 54 Ala. 275 ( 1875 )

MANNING, J.

The complaint in this cause discloses that the promissory note sued on, though payable to Sallie T. Wilkinson, was given for the rent of her statutory separate estate, and that the plaintiff, Thomas, was her husband. The averments, therefore, showed that the right of action was in him; and the demurrer to the complaint was properly overruled.—Rev. Code, § 2372; Pickens & Wife v. Oliver, 29 Ala. 528.

2. The case made by the complaint differs from that shown by the evidence — only in this: That the latter disclosed that plaintiff was present when the note was given for the rent of his wife’s land, and directed that it be made pay*able to her. This may have been done only as a means of indicating what, in the event of the early death of either, it would be proper should be known, on what account the instrument was given. As it was not shown that Mr. Wilkinson, after receiving the note, ever delivered it as a gift to his wife, and it was shown to have been given for rents, which he was entitled to receive, recover and have without accountability to his wife therefor, and as it did not matter to appellant whether the wife or the husband was entitled to the money which hfe owed — we are of the opinion that there was no error in the charge of the court given upon request of the plaintiff in writing, (according to the statute), that if they believed the evidence, they must find for the plaintiff.

Judgment affirmed.