Rhodes vs. Hart. to do with it. One share of the stock is the consideration for the promise, and if it was at the time of the contract worth anything, so that the contract is not a nudum pactum, the plaintiff has a right to stand on the written agreement. If the stock has proven worthless, that was the defendant's risk; he was one of the stockholders, and may be himself partly the cause. At any rate, he has agreed to pay $100 00, and we see nothing in his contract to alter this, except the condition he himself imposed, which, as the proof shows, has been complied with. Judgment reversed. L. M. RHODES, plaintiff in error, vs. SAMUEL HART, defendant in error. 1. Where a note was given to the plaintiff, indorsed by the defendant, for money borrowed by the maker thereof, and subsequently said note was given up, a new note by the maker for a larger amount, including said indebtedness, being substituted therefor, and suit is brought against the defendant for the amount originally loaned, as money had and received for the use of the plaintiff, and the defendant claims to be discharged from all liability therefor by the delivering up of the first note, the court should have charged the jury that if they believed from the evidence that the original note was given up, the defendant's name erased therefrom, and a new note given by the maker, including the amount due on the original note, secured by mortgage on the maker's property, the liability of the defendant as indorser on the original note, was at an end. 2. The plaintiff, having taken a mortgage from the maker of said note on one-fourth of the crop, to secure its payment, is estopped from claiming the said one-fourth from the defendant. 3. Where the jury pass upon questions not put in issue by the pleadings, their verdict is illegal and will be set aside. Promissory notes. Indorsement. Estoppel. Verdict. New trial. Before Judge GIBSON. Warren Superior Court. April Term, 1873. For the facts of this case, see the decision. Rhodes vs. Hart. CHARLES S. DUBOSE, for plaintiff in error. No appearance for defendant. WARNER, Chief Justice. The plaintiff brought his action against the defendant, alleging that on the first day of January, 1867, the defendant was indebted to him $300 00, besides interest, for so much money had and received from the plaintiff for the use of defendant. There is also another count in the plaintiff's declaration, alleging that the defendant is indebted to him in one other sum of $300 00, for that the defendant promised to pay him for the use of said money the one-fourth of the crop made on a certain described tract of land sold by defendant to one Moses Reese. In support of these allegations, it appears from the evidence in the record that in the year 1867 Reese came to the plaintiff to borrow $300 00; that he loaned the money to the defendant, as he says, and took the note of Reese for $375 00, which was indorsed by the defendant, secured by a lien on Reese's cotton crop. When the note became due defendant notified the plaintiff to foreclose his lien on Reese's crop, which was done, and an execution levied thereon. After the levy was made Reese and the plaintiff entered into an agreement by which the $375 00 note, indorsed by the defendant, was given up by the plaintiff to Reese, the levy dismissed, a new note given by Reese for $417 50, which included the $375 00 note and other debts due by Reese to the plaintiff, which note of $417 50 was secured by a mortgage on Reese's land, stock, and one-fourth part of the crop to be made on the land by Cason for the year 1869. The plaintiff states that he then agreed with defendant to take the rent of the land that he had sold to Reese and taken back for the year 1869, which was rented to Cason. Plaintiff did not intend to release defendant from the note, did not scratch his name off, but delivered it up to them. The note was offered in evidence at the trial with defendant's name erased. Rhodes, Rhodes vs. Hart. the defendant, stated that he sold a lot of land to Reese, took his two notes, one for $200 00, the other for $600 00, and gave him his bond for title. Reese paid the $200 00 note, but not the $600 00 note, and defendant sued him on it. Defendant and Reese then agreed to rescind the land trade Reese agreeing, in writing, that if defendant would deliver up to him his $600 00 note he would deliver up his bond for title to the land, and defendant agreed, by parol, that if Reese would at once give up the bond for title to him, that he would give him, Reese, the one-fourth of the crop grown on the land in 1869, which Reese refused to do, and still refuses to comply with his written agreement. Defendant never agreed to pay the plaintiff, Hart, one-fourth of the crop; did not know him in the transaction. There is much other evidence in the record, and in relation to the erasure of the name of the defendant as indorser on the $300 00 note by the plaintiff, as well as to the agreement of the defendant to pay one-fourth of the rent of the land to the plaintiff, the evidence is conflicting. The jury found a verdict for the plaintiff for $444 00, with interest from the 1st January, 1870, and recommended that the court order the bond for titles given by the defendant to Reese delivered up and canceled, in pursuance of the agree ment made by the parties, and the note of Reese be delivered to him by Rhodes, the defendant. A motion was made for a new trial, on the ground that the verdict was contrary to law, contrary to the evidence, and for error in the refusal of the court to charge the jury as requested, and because the verdict was illegal, which motion was overruled by the court, and the defendant excepted. 1. Reese borrowed of the plaintiff $300 00 to pay a debt which he owed defendant, gave to him his note for $375 00, which note was indorsed by defendant. Afterwards this note was given up and a new note given by Reese, as before stated. In view of the facts of this case the court, in our judgment, should have charged the jury that if they believed from the evidence that the original note for $375 00 was given up and the defendant's name erased therefrom, and a new note given Emory vs. Smith. by Reese, including the amount due on the original note, secured by mortgage on Reese's property, the liability of the defendaut as indorser on that original note was at an end. 2. In relation to the one-fourth of the crop made on the land, it would seem that if the plaintiff took a mortgage from Reese on the one-fourth of the crop to secure the payment of the last note, he would be estopped from claiming it from Rhodes, the defendant. 3. The verdict is for too much, even if the defendant was liable to pay one-fourth of the rent of the land, besides, it is illegal, as the jury passed upon questions not put in issue by the pleadings. Let the judgment of the court below be reversed. ELIZABETH EMORY, executrix, plaintiff in error, vs. JAMES G. SMITH, for use, etc., defendant in error. If an execution issue in accordance with the judgment in a case, it is not a good ground for an affidavit of illegality to stay the execution that the judgment is irregular. Judgment. Execution. Illegality. Before Judge JAMES JOHNSON. Harris Superior Court. October Term, 1873. James G. Smith, for the use of Edwin M. Hines, brought complaint against "Elizabeth Emory, executrix of Samuel Emory, deceased," on five promissory notes dated March 12th, 1861, due December 25th, next thereafter, payable to plaintiff bearer, and each for the sum of $50 00. Judgment by default in the usual form was rendered in favor of "the plaintiff" against the "defendant." Execution issued to be levied "of the goods and chattles, lands and tenements of Elizabeth Emory, exccutrix of Samuel Emory, deceased." A levy was made upon certain lands as the property of the deceased. The defendant filed an affidavit of illegality, setting up the following grounds: Emory vs. Smith. 1st. Because in the original suit upon which this fi. fa. was obtained, the defendant was sued in her representative character, to which there was no plea of ne unques executrix, or release to herself, or plene administravit præter and a finding against her, and therefore the judgment should have been de bonis testatoris, and the execution in accordance therewith. 2d. Because if said judgment and execution are illegal, she has a valid defense to the original suit, of which she was not aware until after said judgment was obtained. Upon demurrer filed the affidavit of illegality was dismissed. To which ruling defendant excepted. JAMES M. MOBLEY; R. A. RUSSELL, by JAMES M. RUSSELL, for plaintiff in error. L. L. STANFORD, for defendant. MCCAY, Judge. Under the uniform rulings in this state, an illegality does not lie on the ground that there is error in the judgment. Not, at least, unless the judgment be void. Here the most that can be said is that the judgment was irregular. Such a judgment was possible under our law, under the writ. There was no error therefore in overruling the illegality. This proceeding is a statutory one, and only in special cases, to-wit: when the execution is proceeding illegally. If it conforms to the judgment it is not proceeding illegally, except, perhaps, when the judgment is absolutely void. We do not say the party has no remedy. If the facts are true, as stated, this can hardly be so. We leave this, however, to the party's own discretion. Judgment affirmed. |