Dennis v. Williams

A. J. WALKER, C. J. The representative of the estate of Samuel P. Dennis, deceased, holding the two notes of Tilman Y. Osborne and Thomas J. Osborne, for one hundred dollars each, given for land, exchanged them with Thomas J. Osborne, for a note for two hundred and twenty-five dollars on Wilson Williams, a sub-purchaser of the same land. It is stated in the bill of the complainants, that the transaction was an exchange, and that the representative of Dennis held the note of Williams “ in the lieu and stead ” of the note on Tilman Y. and Thomas J. Osborne, and claimed that it (the note on Williams) “is in his hands a lien on the land.” It appears that the note on Williams was not endorsed, to the representative of the estate of Dennis. In a part of the bill antecedent to the allegations in reference to the exchange of the notes it is said, that Tilman Y. and Thomas J. Osborne did no't pay the note on them, “at maturity or after-wards, except in the manner hereinafter (thereinafter) stated.” Prom this glance at the complainant’s bill it is apparent, that the note on Tilman Y. and Thomas J. Osborne was transferred or exchanged to one of the makers; that this was deemed a payment of the note, and that a . claim of lien was predicated upon the note received on the [636] exchange without endorsement, which is held “ in lieu and stead ” of the original note. The representative of Dennis has taken a note upon a stranger to the original debt, without endorsement, and surrendered the note evidencing the original debt; and the transaction is regarded by himself as a payment. There is scarcely any authority to be found, and certainly no principle can be stated, militating against the proposition, that the original debt was extinguished by the transaction above stated. The proposition is intimated, arguendo, by this court, in Bradford v. Harper, (25 Ala. 337,) that the taking of a security on a third person, for a pre-existing debt, would be, prima facie, an extinguishment of it. The exigency of this case does not require us to go so far; and it is not our purpose to inquire whether, upon a smaller measure of proof falling within the limits of this case, the pre-existing debt would not be considered as discharged. There is, perhaps, no subject upon which there is a greater exuberance and contrariety of decision. Many of the cases may be found collated in the notes to the first section of the 7 th chapter of 2 Parsons on Notes and Bills, pp. 150-164; see, also Story on Prom. Notes, § 404. We refer to the following decisions, as going at least as far as is necessary to sustain our proposition, without adopting them: Cole v. Sackett, 1 Hill, (N. Y.) 516; Waydell v. Luer, 5 ib. 448; S. C, 3 Denis, 41; Elwood v. Deifendorf, 5 Barb. 398, 408; Frisbee v. Larned, 21 Wend. 450; Hughes v. Wheeler, 8 Cow. 77; Conkling v. King, 4 Coms. 440; Stone v. Chamberlin, 20 Ga. 259; Hutchings v. Olcutt, 4 Ver. 549. All the authorities agree, that if the note on a third person was in fact reeéived in discharge of the original indebtedness, in the absence of fraud, the same is extinguished. — Story on Prom. Notes, supra; Carriere v. Ticknor, 26 Ala. 571; Mooring v. Mobile Marine Dock & Mutual Insurance Co., 27 Ala. 254; Brewer v. Branch Bank at Montgomery, 24 Ala. 439; Cocke v. Chaney, 14 Ala. 65. 2. The debt evidenced by the note of Williams, was, by its terms, not due and payable until title was made. A tender of title, or some excuse for its omission, was therefore indispensable to the equity of a bill asserting the ven [637] dor’s lien for the payment of that note. — Spoor v. Phillips, 27 Ala. 193; Freeman v. Jordan, 17 Ala. 509. The decree is affirmed.