Boyles v. Knight , 123 Ala. 289 ( 1898 )

McCLELLAN, C. J.

Boyles not being a party to the transaction by which Mrs. McKinley and her husband, to evidence an antecedent debt which she owed Buckalew, executed to the latter a note which on its face is a rent note for land which belonged to Mrs. McKinley, is not estopped to show the real facts. Upon those facts Buckalew had no lien on the crops grown on the land for the payment of said note.—Lehman Bros. v. Howze & Creagh, 73 Ala. 302, and cases there cited.

Buckalew and Knight were joint tortfeasors in the conversion of the cotton upon which plaintiff had a mortgage. ITe might have sued Jioth. Having sued Knight, he did not waive the tort as to him and ratify the sale made by Buckalew to him by subsequently receiving from Buckalew a part of the damages he had sustained by the conversion.

The court therefore erred in giving the affirmative charge for the defendant.

Reversed and remanded.