The suit is for breach of warranty as to incumbrances.
The burden of proof was upon the plaintiff to show his damages, and he must show the actual discharge of the prior incumbrance. It follows that if the alleged incumbrance was satisfied and removed by the moneys or properties of the grantors, or either of them, in conveyance in question, the plaintiffs were only entitled to recover nominal damages by reason of the breach that resulted in the execution and delivery of the conveyance.
The evidence shows that plaintiff Eaton has paid nothing in the removal of the incumbrances, nor has he in any wise obligated himself to the payment of any sum for such purpose. The suit by McShan, Jr., and Eaton was joint; the court correctly instructed the jury that plaintiffs had not parted with value in the removal of the prior incumbrance, and that only nominal damages may be awarded. The verdict was responsive thereto.
There was no amendment of the complaint as to the parties plaintiff; the incumbrance had been discharged when the suit was brought. The verdict of the jury for nominal damages was justified by the evidence. The testimony of J. T. McShan, Jr., was to the effect that he had conference with Miller, Eaton, and Kilpatrick, and it was agreed that Eaton was to lend to Miller and Kilpatrick the sum of $1,000, the amount required to discharge the balance of the trust deed, prior incumbrance on the timber, and timbering right; that the sum be obtained by McShan, Jr., and Eaton, executing their note to Miller and Kilpatrick, securing McShan, Jr., and Eaton in the execution of such note by the execution by Miller and Kilpatrick of the note of same amount; that when McShan executed the note to the Pickens County State Bank for said sum, it was in the furtherance of said agreement; that Miller was not to use the note in question until Eaton had signed the note indicated, and the said Miller and Kilpatrick had executed their note payable to McShan, Jr., and Eaton. There was afforded an inference of fact for the jury *Page 187 to determine whether the $1,000 evidenced by the note of McShan, Jr., was to be to Miller, or to Miller and Kilpatrick, to be secured as indicated. If the sum was a loan by McShan, Jr., to Miller, or to Miller and Kilpatrick, the proceeds became properties of Miller or Miller and Kilpatrick, and they may use as they saw fit. The evidence shows that the trust deed or incumbrance was paid off and discharged by moneys that came through Miller, or his agent in the premises, Kilpatrick. It follows from the evidence that it was a matter for determination by the jury whether any money of the joint plaintiffs was used in removing the prior incumbrance on the land. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.
There was no reversible error in declining to accept verdict for the defendant sought to be rendered contrary to the written instructions of the court. The plaintiffs cannot complain of the court's instructions in their favor.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.