Gordon v. Jones

Supreme Court of Alabama

Gordon v. Jones

42 Ala. 147

DecidedJanuary 15, 1868

StatusPublished

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Bluebook

Gordon v. Jones, 42 Ala. 147 (Ala. 1868).

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Opinion

A. J. WALKER, C. J.

The only point of controversy in this case is, whether the defendant, Ellsberry, was a purchaser with notice of the complainant’s lien. The chancellor ruled that he was not, a,nd dismissed the complainant’s bill. The question of notice depends upon the evidence, and is so doubtful, that we should be exceedingly reluctant to disturb the chancellor’s decision on either side. The onus of proof was upon the complainant. He proved notice by his endorser, who held a note situated precisely as the complainants, so far as the question of lien was concerned. The endorser was released from his liability on his endorsement, but he was still interested in the question of lien. The witness on the other side, was the defendant himself. Neither witness would be said to be free from the influence of those feelings of interest, which tend to bias the testimony of witnesses, though the interest of the defendant alone was directly involved in the suit. One swears that notice was given, but the other swears to the negative. When the notice is said to have been given, no person was present. The complainant’s witness admits that' he had said the defendant must have misunderstood him. The probabilities are on the defendant’s side of the question. It would seem somewhat strange for the defendant to purchase and pay full value for the land, when fully informed of the outstanding liens. It is not an unreasonable inference from the testimony, that the complainant’s witness made casual mention of the lien to defendant, and that he was either not heard or not understood. This explanation is suggested by the witness himself. It avoids an imputation upon the veracity of either witness, and is consistent with the probability that the defendant would not have paid his entire purchase-money, if he had been informed of the lien. We ought not to reverse the chancellor’s decision upon a mere question of evidence, unless we were fully [149]*149convinced of his error. — Phillips v. Phillips, 39 Ala. 63. We are not so convinced in this case, and must let his decree stand. The question is one of that character in the decision of which absolute certainty is unattainable.

Affirmed.

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A. J. WALKER, C. J.

The only point of controversy in this case is, whether the defendant, Ellsberry, was a purchaser with notice of the complainant’s lien. The chancellor ruled that he was not, a,nd dismissed the complainant’s bill. The question of notice depends upon the evidence, and is so doubtful, that we should be exceedingly reluctant to disturb the chancellor’s decision on either side. The onus of proof was upon the complainant. He proved notice by his endorser, who held a note situated precisely as the complainants, so far as the question of lien was concerned. The endorser was released from his liability on his endorsement, but he was still interested in the question of lien. The witness on the other side, was the defendant himself. Neither witness would be said to be free from the influence of those feelings of interest, which tend to bias the testimony of witnesses, though the interest of the defendant alone was directly involved in the suit. One swears that notice was given, but the other swears to the negative. When the notice is said to have been given, no person was present. The complainant’s witness admits that' he had said the defendant must have misunderstood him. The probabilities are on the defendant’s side of the question. It would seem somewhat strange for the defendant to purchase and pay full value for the land, when fully informed of the outstanding liens. It is not an unreasonable inference from the testimony, that the complainant’s witness made casual mention of the lien to defendant, and that he was either not heard or not understood. This explanation is suggested by the witness himself. It avoids an imputation upon the veracity of either witness, and is consistent with the probability that the defendant would not have paid his entire purchase-money, if he had been informed of the lien. We ought not to reverse the chancellor’s decision upon a mere question of evidence, unless we were fully [149]*149convinced of his error. — Phillips v. Phillips, 39 Ala. 63. We are not so convinced in this case, and must let his decree stand. The question is one of that character in the decision of which absolute certainty is unattainable.

Affirmed.

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Bluebook (online)

42 Ala. 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-jones-ala-1868.

Opinion

A. J. WALKER, C. J.

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