Barron v. Vandvert

COLLIER, C. J. The act of 1837, which has been cited for the plaintiff in error, merely declares that notes, &c. payable to a person or bearer, shall be sued on in the name of the payee, his indorsee or personal representative. It is perfectly clear that it does not interfere with the right of an administrator de bonis non to take possession of the unadministered assets of the estate he represents; and to sue as such upon notes or other evidence of debt payable to his predecessor in the administration. The case of Spence v. Rutledge, 11 Ala. Rep. 490, and the citations there made, show the right of the administrator de bonis non to sue in such case, and that the declaration sufficiently alledges the money recoverable on the note, will be assets of the plaintiff’s intestate. It was clearly competent for the circuit court to have stricken out the pleas which were pleaded by their title upon the plaintiff’s objection to receive them. The plaintiff might (as he did) indicate his objection by demurrer, accompanied by a refusal ore tenus to recognize the pleas. By demurring, he waived nothing — certainly did not admit that the name of a plea, is a defence regularly interposed. A demurrer only admits the truth of facts which are well pleaded; hence it is, that we have repeatedly held, a plea which should be verified by affidavit, is bad on demurrer, if not thus supported. We need not consider whether the demurrer to the fourth [238] and fifth pleas were rightfully sustained; for however this may be, the defendant has had the benefit of the defence they set up, under the plea of non assumpsit, and this has prevented the Judgment on demurrer from working an injury. 8 Ala. Rep. 942. In Doe ex dem. LeVerich & Co. v. Bates, 6 Ala. Rep. 480, We said, “ it may be laid down generally, that a mere parol agreement, whether written or unwritten, requires a consideration to support itand although it may not be necessary, that the consideration should be expressed in the writing, yet if it is not there expressed, it must be proved by evidence aliunde. To sustain this conclusion, many cases are cited. The law may be otherwise, where a contract without a seal is made the foundation of an action. 9 Ala. Rep. 638. In the case first cited, it was decided that where the plaintiff in a judgment receives a partial payment thereon, and agrees to stay the same for six months, and no execution issues until the expiration of that period, the agreement will be considered voluntary, and the lien of the judgment override and defeat a conveyance made by the defendant during the time the indulgence was granted. It is said, “ if the agreement was voluntary when made, the mere acquiescence of the plaintiffs cannot impart to it a different character in law.” A promise by the creditor to accept of his debtor a less amount than is due, or an agreement upon the payment of a part to forbear a suit for the residue, will not be recognized as binding in law. 2 Bibb’s Rep. 27; 12 Johns. Rep. 426; 2 Hall’s Rep, 185; 2 Verm. Rep. 536. See also 2 Johns. Cases, 92; 11 Pick. Rep. 150; Wright’s Rep. 367, The payment of ¡$1,2(00 by the defendant’s intestate in extinguishment of the note pro tanto, furnished no consideration for 'the stipulation to remit interest, or to delay suit thereon, This is well established by the decision of this court, which we have seen rests upon ample authority. • It has been argued that as the land referred to in the agreement was the consideration of the note, the administrator was under a moral obligation to cause the titles to be perfected; he therefore agreed to perform a moral duty, and the law will enforce his undertaking. This argument assumes more than is proved by the writing, even assisted by [239] all the proof which was made at the trial. If there was no obligation upon the administrator, which the law would enforce, to clear the defendant’s title from incumbrance or embarrassment, it is difficult to perceive how moral duty could require him gratuitously to enter into an engagement for that purpose. But be this as it may, the agreement does not disclose a consideration deducible either from legal or moral duty, and we have said that such a writing, unaided by extrinsic proof, cannot be operative. The law has often upheld express promises founded on a moral obligation; but to make one liable in such case, it should appear that the obligation is strictly and undoubtedly of such a character. 2 Bing. Rep. 437; 2 B. & Adol. Rep. 811; 13 Johns. Rep. 259. 289; 16 Id. 281, 283, n.; 3 Conn. Rep. 368; 7 Id. 57; 2 Pennsyl. Rep. 521; 1 Verm. Rep. 247; 2 Taunt. Rep. 184. This view relieves us from the necessity of giving to the ruling of the circuit judge a more particular examination. Our conclusion is, that the judgment must be affirmed.