Pennington v. Woodall

Citations

• 17 Ala. 685

Syllabus

<p>1. In a suit against a third person by the grantee in a deed of trust to recover the property conveyed, it is not necessary to prove the consideration of the deed, until the defendant bas shown that he claims as a purchaser from or creditor of the grantor.</p> <p>2. Where it becomes necessary to prove the consideration of a note, the most regular mode of proceeding is to introduce the note in evidence Í first, and then go on to show its consideration. *.</p> <p>3. Until the creditor shows a judgment or execution, he is not in atfeondition to question the validity of a deed of trust executed by the grantor. '</p> <p>4. In a contest between the trustee in a deed of trust and a creditor of the grantor, the introduction of evidence by the latter, tending to show the consideration of the deed, will not authorise the court to charge the jury, that it is unnecessary for the trustee to prove the consideration. The effect of such a charge is to place the burden of proof on the wrong party, and thus to mislead the jury.</p> <p>5. If a security in good faith assumes the payment of the debt, on which he is liable, it is a valid consideration for a deed of trust executed to him by his principal.</p> <p>6. The validity of a deed of trust is not affected by the fact that one of the items, of which the debt secured is composed, consisted of usurious interest, which the creditor had in good faith been compelled to pay to a third person, for the purpose of replacing money, that the grantor had borrowed from him and failed to return.</p> <p>7. If a deed of trust is intentionally made to secure to the creditor a larger amount than is justly due to him, it renders the deed void, but a miscalculation, mistake, or unintentional error will not vitiate it.</p>