Jones v. Nolen , 133 Ala. 567 ( 1901 )

McOLELLAN, C. j.

Plaintiff’s debt against E. W. Massengale does not appear to have been in existence on January 3, 1889, when the deed of Ross and wife was executed to Mrs. Massengale. There-is, therefore, no presumption that E. W. Massengale, the husband, paid the consideration of that deed, and the burden of proving that to be the fact was on the plaintiff. This burden he failed to discharge; and, on the other hand, the evidence for the claimant went to show affirmatively that the land was paid for by Mrs. Messengale with her own funds. On this state of case the plaintiff was not entitled to condemn the amount due from the garnishees on the note executed by them to Messengale and transferred by the latter to his wife to the satisfaction of his judgment against Messengale, it being shown that this note was for the purchase money of her land, had been executed to Messengale by mistake and assigned by him to her in rectification of the mistake. The court properly-gave the affirmative charge for the claimant.

Affirmed.