Stribling v. Bank of Kentucky

48 Ala. 451

• Court: Supreme Court of Alabama
• Decided: June 15, 1872
• Status: Published

Opinion

B. F. SAFFOLD, J.

The statute (Rev. Code, §§ 2802, 2804,) is imperative, that when a plaintiff, who is required to give security for the costs, commences a suit without doing so, it must be dismissed on the motion of the defendant. The bill of exceptions states, that the plaintiff deposited with the clerk of the court ten dollars for costs, which was considered by the clerk sufficient security for costs, and was receipted for on the complaint in the following words: “ Acknowledge--security for costs of this suit, — day of-, 18 — . Ten dollars left for costs. J. W. Gordy.” In Peavey v. Burket, (35 Ala. 141,) it was held that insufficient or defective 'security for costs would not authorize the dismissal of the suit, without leave to repair the deficiency. The security given was altogether insufficient, but it was not equivalent to an omission or failure to give any. The term security, in some instances, means the personal obligation of a party, with one or more sureties, to pay money on certain contingencies, as security of the peace. In other cases, the law requiring it directs how it shall be given. But, generally, it seems that any mode which attains the end desired, will be sufficient. There is no doubt that a bond for costs of adequate amount would be a valid security. Ordinance 35 of the convention of 1867 authorizes pledges of property to be given instead of personal securities, in judicial proceedings. There was no error in allowing the plaintiff to give a proper security for the costs.

The land sought to be recovered from the defendant was admitted to have been the separate statutory estate of Mrs, Skinner. The note signed by herself and her husband imposed no liability on her personally, or on her estate, Neither did the mortgage of her land, given to secure its payment. There can be no mortgage where there is no debt. — Martin v. Molton, 43 Ala. 561; Bibb v. Pope, ib. 190; Const., Art. 14, § 6. The defendant purchased the property from her and her husband in proper compliance with section 2373 of the Revised Code, and of course obtained all the interest they could convey. This sale was a repudiation by them of the mortgage. The plaintiff, claiming title from the same source, could not defeat the defendant’s valid deed with his void mortgage.

The testimony of Skinner was improperly excluded. The consideration of the mortgage was the joint promissory note of Skinner and his wife. It was not a contradiction or varying of the mortgage to prove that the consideration of the note was the individual indebtedness of the husband. A party may prove some other consideration besides that expressed in the deed, provided it is consistent with the consideration expressed. — 2 Phil. Ev. 353; Peacock v. Monk, 1 Vesey, 128; West c. Hendricks, 28 Ala. 226 ; Kinnebrew v. Kinnebrew, 35 Ala. 628.

The judgment is reversed, and the cause remanded.