Crutcher v. Taylor , 66 Ala. 217 ( 1880 )

Per Curiam.

The equity of the bills, original and amended, depends, in any aspect of the case, upon the existence of two facts, neither of which the evidence establishes. The first is, that the money, with which the cash payment of the purchase-money of the lands was made, was the money of the appellant; and the second is, that the,appellant, and not her husband, was the real purchaser of the lands. The cash payment, it is shown, and the evidence is without conflict, was made by the husband, with money for that purpose borrowed on his individual credit, and not from the money of the appellant. Nor had the husband, at the time the payment was made, received of the money of the appellant a sum sufficient to make it. He may have intended to re-pay the money borrowed, from moneys of the wife' he expected to receive subsequently; but such intention would not change the ownership of the money paid.

Nor can it be said the appellant was the purchaser of the lands. Not dwelling upon her incapacity, legally and equitably, to enter into such a contract, the fact is, the husband Was the bidder, gave the note and sureties for the deferred payment, was reported as the purchaser to the Court of Probate, and to him the sale was confirmed by that court. The receipt obtained by him for the cash payment, from the attorneys of the administrator, specifying the appellant as the purchaser, was given without the knowledge, 'or consent, or authority of the latter, and can not change the character of the sale, which was fixed by the report of the administrator and the decree of confirmation.

Affirmed.