Connor v. Armstrong

McCLELLAN, J. Two objections are here urged on the part of Connor to the decree in this cause. First, that it was. error to tax him with one half the costs ; and, second, that the sum of one hundred and seventy-five dollars belonging to the corpus of Mrs. Armstrong’s separate estate, and paid by her husband to Connor before the sale of the land, should have been applied to the first items of the latter’s account, and was in fact so applied at the time of the payment, and should not have been applied, as was done by the decree, to those items only for which Mrs. Armstrong’s separate estate was liable as. for articles of comfort and support of the family, &c. 1. There is no merit in the first assignment of error. The imposition of costs rests very largely in the just discretion of the chancellor, and we are satisfied the discretion was properly exercised in this case.—Kitchell v. Jackson, 71 Ala. 556; Ex parte Robinson, 72 Ala. 389; Allen v. Lewis, 74 Ala. 379. 2. As to the application of the payment of the one hundred and seventy-five dollars referred to above, we think the chancellor fell into error. Armstrong owed Connor an account of seven or eight hundred dollars. For a part of it, the separate estate of Mrs. Armstrong was liable, and for the remainder only Armstrong was liable. The payment in question, though made by Armstrong out of funds which constituted a part of the corpus of the wife’s estate, was aj^plicable, and, in the absence of any showing to the contrary, must be held to have been applied, to the oldest items on the account, without regard to whether they were chargeable upon the wife’s separate property or not. This is the doctrine clearly settled by this court in the cases of Castleman v. Jeffries, 60 Ala. 380, and Jeffries v. Castleman, 68 Ala. 432. Applying this and other payments theretofore made generally to the first items in date of existence of the account, the consideration for the deed from Armstrong and wile to Connor was made up of the later and remaining items representing the balance of about $508. Of these, such as were for articles of comfort and support of the household, chargeable against the wife’s separate estate, constitute, in their satisfaction, payment pro tanto of the purchase-money of the land. All other items going to make up the balance of $508 unpaid at the time of the land transaction, [268] represent in the aggregate the sum which, with interest from the date of the conveyance, Connor must pay to the estate of Mrs. Armstrong, as the condition upon which the relief sought by the bill will be granted. See Connor v. Armstrong, 86 Ala. 262. On the appeal of Connor, the decree of the Chancery Court is reversed, and the cause remanded. We find no error in the record of which the cross-appellants •can complain, and they will take nothing by their appeal.