Brewer v. Branch Bank

CHILTON, C, J. The decree of the Chancellor in this case cannot be sustained. The bill was dismissed for want of equity ; and its allegations, for the purpose of such a motion, must be regarded as true. One of these allegations is, that the judgment, which prima fade constitutes a lien and incumbrance on this land, has been paid and extinguished, by accepting a note made by R. T. Ashurst, J. D. Hopper, and Moses McLemore ; that said note was accepted by the Bank in payment and extinguishment of said judgment, and by its being so accepted, the said judgment became, and was thereby, paid and extinguished, That the acceptance of a note may be an extinguishment and payment of a prior debt or liability, is well settled (see Abercrombie v. Mosely, 9 Port. 150); and that it makes no difference whether such payment proceeds from a party to the transaction or a stranger, was decided in McLane v. Miller, 10 Ala. 856, If, therefore, the allegation [441] as to the extinguishment and payment of the judgment be true, we are of opinion the bill does contain equity. —1 How. Miss. 139; 5 Missouri 59; 2 Shep. 202; 1 Rich. R. 111. The other objections taken to the jurisdiction, viz., that the complainant had a remedy at law, and no attempt had been made to enforce the bid which he had made when the land was sold, we do not think can be supported. The facts charged in the bill show, that there is a cloud resting on complainant’s title, which he has a right to have removed if those facts be as stated. The remedy given by statute, does not deprive the Chancery Court of its original jurisdiction in such cases- Let the decree be reversed, and the cause remanded.