Huckaba v. Abbott

87 Ala. 409

• Court: Supreme Court of Alabama
• Decided: December 15, 1888
• Status: Published

Opinion

STONE, C. J.

It is settled in this State, that a mortgage for future advances is a valid security, and that when it recites an existing debt as its consideration, it is no violation of the law of evidence to receive proof that the actual consideration was advances to be afterwards made.—Tison v. People's Sav. & L. Asso., 57 Ala. 323; Forsyth v. Preer, 62 Ala. 443; Collier v. Faulk, 69 Ala. 58. Such mortgage, if not assailed on other grounds, is valid between the parties; but this rule has some limitations, when assailed by outside creditors or purchasers.—Faulk v. Martin, 69 Ala. 59; Marks v. Robinson, 82 Ala. 69.

The witness W. T. Huckaba testified, that he had no interest in the suit, and was not a partner of H. H. Huckaba, his father, in the mercantile business. He had held himself out as partner, and had permitted the business to be conducted in the name of Huckaba & Son, he being the son. This, it is contended, rendered him liable for the mercantile debts, and made him interested in maintaining the suit. It is not shown that there were any debts, nor that the father was not amply able to meet the liabilities, if any existed. This interest is too remote and contingent, to fall within the statutory rule of exclusion.—Code of 1886, § 2765; Miller v. Cannon, 84 Ala. 59. The Circuit Court erred in excluding the testimony of W. T. Huckaba, as to transactions with the deceased mortgagor.

Beversed and remanded.