Ellerbe v. Troy

Supreme Court of Alabama

Ellerbe v. Troy

58 Ala. 143

DecidedDecember 15, 1877

StatusPublished

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Bluebook

Ellerbe v. Troy, 58 Ala. 143 (Ala. 1877).

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Opinion

MANNING, J.

The first plea demurred to in this cause, set up the pendency of the former action upon appeal, in this court, and was obnoxious to the objections taken to it in the demurrer, of being inconsistent in its averments, and of not being verified, as a plea in abatement, by affidavit. The demurrer was properly sustained.

The cause of action was a promissory note made by appellant’s intestate, among others, in June, 1856, payable three years after date, with interest from date payable annually. And the payee having died, it came, upon distribution of his estate, to bis daughter, Frances Hunter j who brought this suit and was the original plaintiff therein. Upon her death appellee, Troy, prosecuted the suit as her administrator. The pleas, that his intestate was entitled to only a life estate therein, and to the enjoyment of the interest, merely, upon the principal sum, for her own use, were not an answer to the complaint. They admitted a right of action in Frances or Fanny Hunter, when the suit was brought. She was undoubtedly entitled to the interest for her own use, and could recover it only by a suit upon the note. And as that was long past due, she was entitled to recover the principal sum as well as the interest. The law will not permit the splitting up of a cause of action of this nature, so as to make it a foundation for several actions. And though Frances Hunter in her life time, or her administrator after her death, might be chargeable as trustee of the principal sum, for the benefit of others, this did not constitute a bar to the prosecution of the suit brought by her against a maker of the note. It was pleaded as a bar to the entire action; and we think the court did not err in sustaining the demurrer to these pleas also.

For reasons indicated there was no error in ruling out the evidence offered, of certain provisions in the will of William Hunter, father of said Frances, concerning the disposition to be made of his estate in the event of the happening of certain contingencies specified therein.

Let the judgment of the Circuit Court be affirmed.

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MANNING, J.

The first plea demurred to in this cause, set up the pendency of the former action upon appeal, in this court, and was obnoxious to the objections taken to it in the demurrer, of being inconsistent in its averments, and of not being verified, as a plea in abatement, by affidavit. The demurrer was properly sustained.

The cause of action was a promissory note made by appellant’s intestate, among others, in June, 1856, payable three years after date, with interest from date payable annually. And the payee having died, it came, upon distribution of his estate, to bis daughter, Frances Hunter j who brought this suit and was the original plaintiff therein. Upon her death appellee, Troy, prosecuted the suit as her administrator. The pleas, that his intestate was entitled to only a life estate therein, and to the enjoyment of the interest, merely, upon the principal sum, for her own use, were not an answer to the complaint. They admitted a right of action in Frances or Fanny Hunter, when the suit was brought. She was undoubtedly entitled to the interest for her own use, and could recover it only by a suit upon the note. And as that was long past due, she was entitled to recover the principal sum as well as the interest. The law will not permit the splitting up of a cause of action of this nature, so as to make it a foundation for several actions. And though Frances Hunter in her life time, or her administrator after her death, might be chargeable as trustee of the principal sum, for the benefit of others, this did not constitute a bar to the prosecution of the suit brought by her against a maker of the note. It was pleaded as a bar to the entire action; and we think the court did not err in sustaining the demurrer to these pleas also.

For reasons indicated there was no error in ruling out the evidence offered, of certain provisions in the will of William Hunter, father of said Frances, concerning the disposition to be made of his estate in the event of the happening of certain contingencies specified therein.

Let the judgment of the Circuit Court be affirmed.

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Bluebook (online)

58 Ala. 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellerbe-v-troy-ala-1877.