Lawler v. Norris

WALKER, J. It does not appear from the bill of exceptions that the renting of land, which was the consideration of the note sued upon, was private, or not at public auction. The note purports on its face to have been given for the rent of the land of plaintiff’s intestate; and the bill of exceptions states, that the plaintiff “ rented the land to the defendant, who gave the note sued on therefor; but there is not one word in the bill of exceptions, upon the point of the privacy or publicity of the renting. The court charged the jury, that if they believed the evidence, they must find for the defendant; and the bill of exceptions professes to set out the entire evidence. We can not intend, in favor of the charge given, that a fact was proved not found in the bill 677 of exceptions. To support such a charge, the evidence must be clear, without conflict,' and leave nothing to be done except to draw a legal conclusion from the facts. — Abney v. Pickett, 21 Ala. 739; Knight v. Bell, 22 ib. 198; Hollingsworth v. Martin, 23 ib. 591; Woodfolk v. Sullivan, ib. 538. It is possible that, under the facts before the jury, it might have been a question whether the sale was private; but it was not the province of the court to determine that question. From the state of the record, as above described, it results that the question, which was argued by counsel, whether a note given to an administrator, upon a private renting of the lands of the estate, is void, does not arise; and the proof before the circuit court was not such as to justify the court in assuming, that the prima facie case made out for the plaintiff by the note was successfully assailed. — Merriwether v. Taylor, 15 Ala. 735. We decline to decide the question argued by counsel, because it is not presented on the record. The judgment of the court below is reversed, and the cause remanded.