Sherrer v. Enterprise Banking Co.

ANDERSON, J. The note secured by the mortgage to J. S. Ramsey was negotiable, and was transferred to the defendant for value and before maturity, and, if the defendant had no notice that the plaintiff was a mere surety for her husband, the fact that she was could not defeat a collection of the note, but which was not, of itself, available to the defendant under the plea of the general issue. It was further shown by the defendant’s evidence, however, that the Ramsey note and mortgage was an incumbrance on the identical land sold Hutchins, and that the purchase money, a part being what is [333] claimed in the suit at bar, was used to discharge this incumbrance and thus clear the title to the land sold Hutchins. The defendant’s evidence also showed that the plaintiff directed the payment of this mortgage indebtedness from the proceeds of said sale. If these facts were true, the plaintiff should not- have recovered. On the other hand, the plaintiff denied directing the payment of said mortgage, and also introducéd some evidence showing that the mortgage debt had been reduced and did not consume all of the purchase money. If she did not direct payment of the debt, the defendant could not defeat her recovery under the general issue; or if she did direct payment, but said debt was less than the proceeds of the sale, she should have recovered her part of the excess. These were disputed facts, and were questions for the jury. Yet the trial court saw and heard the witnesses, and evidently concluded that the verdict was contrary to the weight of the evidence. Unless the evidence plainly and palpably supports the verdict, the action of the trial court in granting a new trial will not be disturbed by this court. — Dillard v. Savage, 98 Ala. 598, 13 South. 514; Lee v. De Bardeleben Co., 102 Ala. 628, 15 South. 270; Cobb v. Malone, 92 Ala. 630, 9 South. 738. We are not prepared to my, after a consideration of the evidence, that the verdict was so plainly and palpably supported by the evidence as to put the trial court in error for granting the new trial, and the judgment of the circuit court is affirmed. Affirmed. Dowdell, C. J., and McClellan and Sayre, JJ., concur.