Volume 180 — Alabama Reports

Heard before Hon. Alfred H. Benners. Bill by the Wilmer Store Company against, the Southern States Fire & Casualty Insurance Company to rescind a sale of stock in said corporation for fraud. Decree for complainant and respondent appeals. Counsel discuss the errors assigned and insist that error prejudicial to appellants intervene, but they cite no authority in support of their contention.

Clair Chancery Court. Heard before Hon. W. W. Wi-iiteside. Bill by Mintie C. Watson against Newton O. Hamilton to declare tbe interest owned and held by E. E. Hamilton in the partnership óf N. O. & E. E. Hamilton at the time of the death of E. E. Hamilton, and to state an account, and determine complainant’s interest in the same, as an heir of said E. E. Hamilton. Prom a decree finding the non-existence of a partnership, complainant appeals.

Heard before Hon. Alfred H. Benners. Bill by Walter D. Seed against Joe D. Brown, to restrain the foreclosure of a mortgage on tbe ground that tbe mortgage debt bad been fully paid. Prom a decree denying relief and directing a foreclosure for failure to pay within thirty days, complainant appeals. Tbe court erred in decreeing an attorneys fee. —Bynum v. Frederick, 81 Ala. 489; Bedell v. Mortgage Go., 91 Ala. 223; Pollard v. Mortgage Go., 103 Ala. 300.

<p>Appeal from Lauderdale Chancery Court.</p> <p>Heard before Hon. W. H. Simpson.</p> <p>Bill by S. W. Frierson against A. E. Walker for an accounting. Judgment for complainant and respondent appeals.</p> <p>Counsel discuss the facts in the case and insist that the preponderance of the evidence was against the finding of the Chancellor, and that the decision of the Chancellor was therefore wrong, but no authority is cited in support of the contention.</p> <p>In support of the legal proposition insisted on in the case, 1st, that partnerships between attorneys are governed by the same principles as commercial partnerships, counsel cite Denver v. Rone, 99 U. S. 359; 2nd, that insanity does not ipso facto dissolve a partnership. — 30 Cyc. 654; 17 A. & E. Enc. of Law, 1102; 3rd, that a surviving partner of a firm of attorneys is bound to complete all business undertaken or agreed to be done without charge to the partnership for the services rendered in so doing. — Colgin v. Cummings, 1 Port. 148; Offut v. Scott, 47 Ala. 104; Little v. Caldwell, 40 Am. St. Rep. 89. Counsel also discuss the evidence and insist that the' finding of the Chancellor was correct and should not be disturbed.'</p>

Heard before Hon. E. J. Garrison. Bill by George A. Hill, against M. A. Smith and others, for partition of real estate in kind. From a judgment overruling exceptions to the report of the commissioners of a partition in kind, respondents appeal. It is within the power and province of the court to set aside the report of the commissioners where justice requires it.— Freeman on Co-tenancy, sec. 563 and cases cited.

Heard before Hon. L. D. Gardner. Bill by Sarah A. Elkins against the Bank of Henry to cancel a mortgage as a cloud on title and deliver it up because given as security for the debt of her husband. From a decree for respondent complainant appeals.

Heard before Hon. Alfred H. Benners. Bill by A. J. Upchurch against the McLester Building Company to declare and determine a boundary line between certain lots. From a decree for complainant respondent appeals.

Heard before Hon. Alfred H. Benners. Bill by J. W. Tanner against Southern States Eire and Casualty Insurance Company to rescind purchase of shares of stock because of material false representations. Decree for complainant and respondent appeals. Counsel discuss the errors assigned and insist that the chancellor was in error in his finding on the facts, but cites no authority in support of their contention.

Heard before Hon. Tt-ios. H. Smith. Bill by the Lott-Blackshear Commission Company against Geo. L. Albritton to foreclose certain mortgages with cross bill by the defendant. From a decree granting relief under the original bill, ordering an accounting, and dismissing his cross bill respondent appeals.

Heard before Hon. W. H. Simpson, Bill by Mattie Putman and others against Ludy M. Jackson and others to cancel a mortgage on the ground of payment, or to redeem if it should appear there was a balance. Prom a decree overruling demurrers to the bill, respondents appeal. A bill must contain a prayer for process. — Rule 17 Chancery Pr.; Story’s Eq. PL, section 44; McDonald v. McMahan, 66 Ala: 155; McKenzie v. Baldridge, 49 Ala. 566.

<p>Appeal from Jefferson Chancery Court.</p> <p>Heard before Hon. Alfred H. Benners.</p> <p>Bill by B. E. Walthall and H. C. House against the Bains Bros. Investment Company to redeem land from tax sale. From a decree overruling demurrer to the bill, and granting the relief prayed, respondents appeal.</p> <p>The bill alleges that the complainants are the owners of and in possession of certain lots in the city of Birmingham, which on December 4, 1909, were sold by the chancery court of Jefferson county for the city taxes due the city of North Birmingham, and that respondents became the purchasers at said sale at and for the sum of $17.80. It is further averred that complainants have tendered respondents the sum of $20.40, for the purpose of redeeming said property, which has been refused. They submit themselves to the jurisdiction of the court, ask for redemption, and pray that all title, estate, and interest to said real estate be divested out of the respondents and invested in complainants. The demurrers set up an adequate remedy at law, that the amount is less than $50, and the failure to tender the amount due for taxes for the year'1910.</p> <p>Complainant had a plain and adequate remedy at law under sections 1328 and 1329, Code 1907. The taxes for the year 1910 had already attached a lien on the property and a charge against appellants. — Section 2093, Code 1907; Frost v. The State, 153 Ala. 657. The charges against the property for state, county and city taxes had attached for the year 1910 and should have been included in the tender made. — Cramer v. Watson, 73 Ala. 122; Ebersole v. Ellington, 156 Ala. 575; Burke v. Brown, 133 Ala. 493.</p> <p>No brief reached the reporter.</p>

Heard before Hon. Thos. H. Smith. Bill by William B. Shields against William Cowley, to redeem from a mortgage foreclosure sale. From a decree for complainant, respondent appeals.

Heard before Hon. W. W. Whiteside. Bill by the Southern Mineral Land Company against E. P. Lacey, and others, to determine and quiet title. Decree for complainants and respondents appeal.

Heard before Hon. Ti-ios. H. Smith. Bill by A. B. Curtis against M. E. Curtis to correct or reform the transfer of certain written instruments. After final decree as between the original parties, J. H. Curtis, as administrator, applied for intervention and from an order denying his petition he appeals. There was a privity and not a new and independent claim and nothing in the way of new issues was attempted to be raised.

Appear from Wilcox Chancery Court. Heard before Hon. Ti-ios. H. Smith. Bill by A. B. Curtis, against M. E. Curtis, to reform a certain transfer of a note and mortgage and to foreclose the mortgage. Prom the decree confirming the report of the register and the foreclosure proceedings, respondent appeals.

Heard, before Hon. L. D. Gardner. Bill by A. T. Lee and another against R. D. Reynolds, to restrain foreclosure proceedings and to decree cancellation of the mortgage upon payment of the sum found to be due. From a decree granting the relief respondent appeals.

Heard before Hon. Wm. II. Simpson. Bill by M. A. Randolph and others against. Jerry W. Yails, and others, to declare certain transactions a cloud upon title, to remove the same and for the sale of lands for partition. From a decree dismissing the bill complainants appeal.

Heard before Hon. W. W. Whiteside. Bill by Morris & Company and others against Barton & Allen and others to set aside a conveyance as a fraud on creditors. From a decree denying the relief prayed complainants appeal. The prayer for a personal decree against Barton and others is authorized.- — Met-calf v. Arnold, 132 Ala. 74.

Heard before Hon. L. D. Gardner. Bill by M. L. Patterson to enjoin H. B. Pitts as tax collector from enforcing the collection of certain taxes. Decree for respondent and complainant appeals. The statutes must be followed in matters of taxation or the acts done will be invalid. — State Auditor v. Jackson County, 65 Ala. 142. The penalties sought to be imposed never arose. — Sections 2250-2251, Code, 1907.

<p> Bill to Partition Land. </p> <p>1. Partition; Bale; Necessity. — While the allegations as to the character of the land may not of themselves have justified a decree of sale for division, such allegations did not impair the effect of the general allegation that the lands could not be equitably divided without a sale, and hence the bill was not rendered demurrable by such allegations.</p> <p>2. Appeal and Error; Harmless Error; Pleading. — The fact that the bill claims for an allowance of attorney’s fees under section 5219, Code 1907, did not render the bill demurrable in such a sense as to make the overruling of the demurrer erroneous; such allegations being treated in a bill for partition as mere surplusage.</p>

Heard before Hon. J. E. Blackwood. Bill by Jim Calvert against Joe Calvert and another to set aside and annul certain conveyances alleged to be fraudulent. From a decree granting plaintiff relief respondents appeal. Exhibits to bills must be proven or admitted by respondent. — Daioson v. Burns, 73 Ala. Ill; Scott v. Brassell, 132 Ala. 660; Baker v. Young, 90 Ala. 426; Rules 16 and 64 Chancery Practice; section 3141, Code, 1907.

<p> Bill to Quiet Title. </p> <p>1. Quieting Title; Title Acquired After Bill Filed,. — The fact that a defendant could not make a sufficient showing of title because not able to trace title from a patentee to one of his earlier grantors, and hence procured a deed from the sole heir of such patentee after the filing of the bill, but before filing his answer is no sufficient reason why he may not prevail in equity on proof of a title valid in other respects.</p> <p>2. Same. — The statute governing proceedings to quiet title contemplates that the answer shall state the title relied on by defendant, from whatever source or at whatever time acquired; hence a title acquired by a defendant after the filing of a bill to quiet title, but before he files answer should be stated in his answer.</p> <p>3. Same; Burden of Proof. — In an action for quieting title where neither party has actual possession and the issue is as to the title, the burden is on the complainant of proving title.</p> <p>4. Same; Evidence. — The evidence considered and held insufficient to show a deed to complainant’s husband from a- grantee of the patentee.</p> <p>5. Same; Defendant’s Title. — Where a defendant in a bill to quiet title established title to the minerals upon and under the lands in ■suit the decree should so declare.</p> <p>6. Equity; Matters Occurring After Bill Filed. — It is a general rule of- equity practice that matters occurring after the filing of the bill which are proper for consideration, may be stated in the 'answer.</p> <p>7. Evidence; Celibacy; Presumption of Continuance. — As the condition of celibacy is the natural and only one possible during early life, and as there is no period at which it necessarily terminates by marriage, the presumption is that celibacy existing during early life continues.</p> <p>8. Same; Best and Secondary. — Before secondary evidence of the contents of a deed can be considered it is essential that the fact be established that such an instrument had once existed.</p> <p>9. Descent and Distribution; Next of Kin; Q-randparents. — Under section 3754, Code 1907, grandparents take before uncles and aunts.</p> <p>10. Adverse Possession; Actual; Woodland. — The fact that prior to 1882, at which time defendant took a deed, complainant’s husband consented to the cutting of two trees on wild woodland, and at another time to the cutting of dead trees for firewood, and at another time, while on the land, he offered to sell it to a stranger, although indicating an intention to claim title and assert dominion, cannot be regarded as anything more than acts of trespass, not making title by adverse possession within the statute of limitations.</p> <p>11. Same; Claim of Ownership; Continuous Possession. — A claim of ownership or an intention to assert title against the true owner is of no consequence, in the absence of demonstrations by. acts done upon the property leaving there indicia of continued possession.</p> <p>12. Same; Assertion of Ownership; Necessity.- — So long as there is no adverse holding the true owner owes no one the duty of a visible or audible declaration of ownership, and no adverse presumptions can be drawn from his inactivity.</p>

Heard before Hon. Thos. H. Smith. Rill by R. L. King against the Livingston Manufacturing Company and others. Held: and left the entire charge, management, and control of the company to said Smith, who was inexperienced in that line of work, and to said Harkness, who was a man of known bad business reputation, and was inexperienced in this line of work; but the directors continued to report to the stockholders that the company was making money,…

Heard before Hon. J. J. Curtis. Bill by P. M. Long, as executor, against J. S. Shannon and others, to declare a lease which had been forfeited a cloud upon title and to remove it. From a decree overruling a general demurrer to the bill the respondents appeal. The bill is subject to many infirmities. First: The bill does not require the defendant to set up and specify his title. — Slosson v. MoNulty, 125 Ala. 124; Moore v. Ala. Nat’l Bank, 139 Ala. 273.

Heard before Hon. John H. Disque. Bill by Susan A. Christopher invidually and as executrix of the will of William A. Christopher, deceased, against John P. Shockley and others to foreclose a mortgage. From a decree overruling demurrers to the hill respondents appeal. There is a misjoinder of parties complainant and respondent as appears from the bill.

Heard before Hon. L. D. Gardner. Bill by P. J. Johnson, as trustee in bankruptcy, against J. D. Davis, and others, to redeem lands of the bankrupt from a mortgage foreclosure. Prom a decree sustaining demurrers to the bill complainant appeals. The trustee in bankruptcy has a right under section 5746, Code 1907, and the provisions of the bankrupt law, to redeem land belonging to the bankrupt estate. — Robinson v. Denny, 57 Ala. 492; 1 Dands. Chan.

Heard before Hon. Stewart Brooks, Special Chancellor. Bill by the Mt. Vernon Lumber Company against Kate T. Shepard and others to enforce certain rights in standing timber and to determine the damages to the land on account of its removal. From a decree sustaining demurrers to the bill complainant appeals.

Heard before Hon. L. D. Gardner. Bill by W. R. McDade and others for mandatory injunction against the city of Montgomery to require the said city in its capacity as a public utility concern to furnish him water through meter boxes without charge for said boxes. From a decree granting the relief prayed, respondent appeals.

Heard before Hon. Alfred H. Benners. Bill by E. Carr, as administrator of the estate of David Dodd, deceased, to set aside a consent judgment rendered in favor of a former administrator against the Illinois Central Railroad Company for damages for the death of his deceased. Prom a decree for respondent complainant appeals.

Heard before Hon. John M. Chilton, Special Judge. Bill by Thomas Gilchrist Shackelford and others against B. M. Washburn and others, to declare a will revoked and to let in complainants to share in the estate conveyed by the will. From a decree sustaining-demurrers to the bill complainants appeal. The will in question does not meet the requirements of the statute. — 8 Adol & E., 60; 7 A. & E. Anno.

Heard before Hon. Thomas H. Smith. Bill by Charles New against Joseph B. Driver to declare certain deeds a cloud on title and to remove same. From a decree for respondent, complainant appeals. See generally New v. Driver, 57 South. 437. The amendment should have been alloAved. — Driver v. New, supra; Smith v. Cockrell, 66 Ala. 64.

<p> Bill to Contest cmcl Construe a Will. </p> <p>1. Charities; Gift; Invalidity.- — The will considered and it is held void for indeflniteness as to the beneficiaries of the charity.</p> <p>2. Same; Dreseription of Benefieiary. — The cy pres doctrine not being recognized in Alabama’ it is essential to the validity of a charity devise that the object or beneficiary of the charity be so described as to be easily ascertained without requiring the court or the trustee to select the charity; it is not necessary, however, that the particular individuals who are to be benefitted be certified or named.</p> <p>Dowdell, O. J., and Mayfield and Somerville, JJ., dissent.</p>

Heard before Hon. Alfred H. Benners. Bill by W. H. Brasfield as lessor, against the Burn-well Coal Company, as lessees, to enjoin the lessee from using surface rights and privileges claimed by it in conducting its mining operations. From decree denying the relief prayed, complainant appeals.

<p>Appeal from Barbour Chancery Court.</p> <p>Heard before Hon. L. D. Gardner.</p> <p>Bill by Henry B. Lake against D. L. Russell and others to declare complainant as an heir of the dead wife entitled to one-half of her personal estate, and to all of her real estate after the termination of the husband’s life interest, to the exclusion of the husband. Prom a decree sustaining demurrer to the bill, complainant appeals.</p> <p>The estate left by the wife was a separate estate and the husband gets only half the personalty and the use of the realty during his life. — Section 3765, Code 1907. He takes nothing under sub-division 6, section 3754, Code 1907, since under that section he can only inherit the equitable estate.- — Clay’s Digest, 168, 191; Marshall v. Grow, 29 Ala. 217; Thompson v. Thompson, 107 Ala. 183; Niorosi v. Phillipi, 91 Ala. 307; 54 N. H. 226; 17 Conn. 201; 28 Vt. 765; 44 111. 446; Hardee v. Bean, 29 Ala. 169; Dahe v. Sewell, 145 Ala. 584; Hayes v. Lemoine, 156 Ala. 465; Fies v. Rosser, 162 Ala. 504; Gimbrell v. Patton, 70' Ala. 626; Gonnolly v. Mahoney, 103 Ala. 572. The estate left was an ancestral estate coming to the wife by gift, devise, or descent from her mother and the husband is excluded by section 3758, Code 1907, from inheriting under section 3754, Code 1907. — 27 A. & E. Enc’y of Law, 299, 304; Gox v. Glarh, 93 Ala. 400; 21 Mich. 229; 22 Mo. 261; 28 Wise. 90; 69 Ark. 339. Lake is of the blood and related in the third degree. — 27 A. & E. Enc’y of Law, 310. The husband is not related by consanguinity or affinity. — Kirby v. State, 89 Ala. 69; 1 A. & E. Enc’y of Law, 911 and cases cited.</p> <p>Under our statute of descent and distribution the husband was entitled to all the estate of the wife she leaving no next of kin nearer than an uncle on the maternal side. — Subd. 6, section 3754, Code 1907; Fies v. Rosser, 162 Ala. 504. Counsel discuss the various sections of the Code and insist that the whole of the estate, as used in subdivision 6, applies both to the separate and to the equitable estate of married women and that under such subdivision of section 3754, Code 1907, as applied to the facts in this case the husband inherits the entire estate to the exclusion of the next of kin notwithstanding the estate came from the maternal side of the wife. — ■Fies v. Rosser, supra; Nicrosi v. Phillipi, 91 Ala. 299; Mueller v. Mueller, 127 Ala. 356; Guice v. Guice, 150 Ala. 552.</p>

Heard before Hon. W. W. Whiteside. Bill by Eliza S. Upshaw and others against John T. UpshaAv and others for partition of land. Decree for complainant and respondents appeal. Bill for partition Aras properly filed. — Callahan v. Nelson, 128 Ala. 671. Courts of equity have concurrent jurisdiction with probate courts in the assignment of dower. — Brooks v. Wood, JO Ala. 538; Hause v. Hause, 57 Ala. 253.

Heard before Hon. T. L. Sowell. Bill by C. G. Zirkle, and another, against T. S. Hen-don, and another, to enforce a vendor’s lien for commission for the sale of land. From a decree sustaining-demurrers to the bill complainants appeal. One ought not in equity and good conscience to keep the estate of another without paying the consideration money. — Wilkinson v. May, 69 Ala. 33; Carver v. Eads, 65 Ala. 109; Waller v. Janney, 102 Ala. 443; McCrory v. Guyton, 154 Ala. 355.

Appear from Lauderdale Chancery Court. Heard before Hon. W. H. Simpson. Bill by Amanda Vaughn against -John W. Vaughn for partition, homestead, and dower. From a judgment for respondent on demurrer, complainant appeals.

Heard before Hon. Wm, H. Simpson. Bill by Sophia Richter against Herman Richter and another as executors of the estate of complainant’s deceased husband to remove the estate from the probate to the chancery court and to carve out her exemptions. From a decree for complainant defendants appeal.

<p> Bill to Quiet Title. </p> <p>1. Quieting Title; Pleading; Prayer. — A bill to quiet title which contains all the necessary averments to give it equity is not rendered demurrable because it contains a special prayer not in accordance with the statute.</p> <p>2. Same; Title. — Where a bill to quiet title complies with all the statutory requirements it is not rendered invalid because it goes further and states the sources and character of the titles of the complainant and respondent.</p> <p>3. Same. — Where a bill to quiet title goes further than the statute requires and in addition to the statutory requirement deraigns the chain of title of the complainant and defendant it is not rendered demurrable, since such allegations were surplusage; the proper method, if defendant decided to admit the allegations of the bill, being by answer, the statute, which is sui generis not requiring complainant to prove his title, but requiring defendant to establish his claim.</p>

Heard before Hon. Wm, H. Simpson. Bill by Susan Austin and another against Robert Alexander Stroup and others. From a decree for complainants the respondent, Robert Alexander Stroup, appeals. The bill was insufficient in its allegation of fraud and undue influence. — Morgan v. Morgan, 68 Ala. 80; Chamberlain v. Dorrance, 69 Ala. 40. A court of chancery will not impute fraud where the facts and circumstances out of which it must arise may consist- with pure intent.

Heard before Hon. W. W. Pearson. Bill by Sarah M. Zeigler against. William J-. Zeigler and others to divest title and vest same fully and completely in the complainant. Prom a decree overruling demurrers to the bill, respondents appeal.

Heard before Hon. W. W. Whiteside. Bill by P. A. Salmon to enjoin A. J. Salmon from participating in the partnership business. Prom a decree dissolving a temporary injunction complainant appeals. The facts do not show a partnership. — Gulf City Go. v. Boyles, 129 Ala. 192; Sahel v. Savannah R. & B. Go., 136 Ala. 380; Zuber v. Roberts, 147 Ala. 512.

Heard before Hon. Gaston Gunter. Bill by Annie Bettie Allen and others against D. C. Allen and his children, William and Marjory, for partition of land. From a decree overruling demurrers to the bill, the minors appeal by their guardian ad litem, J. T. Letcher.

Heard before Hon. A. H. Benners. Bill by George Tribble against Burns Patton. From a judgment sustaining a demurrer to the bill, complainant appeals.

Heard before Hon. A. H. Benners. Bill by Mary Ann Jenkins, and others against W. M. Drennen to subject to the payment of their claims respondent’s unpaid subscription to stock in the State Bank of Pratt City. From a decree overruling demurfers to the bill respondent appeals.

Heard before. Hon. W. W. Whiteside. Bill by Robert Kaplan against Thomas W. Coleman and others, as executors of Lewis H. Kaplan, deceased. From a decree for respondents, complainant appeals. The appeal is prosecuted by Robert Kaplan from a decree of the chancery court holding certain pleas good and sufficient for the abatement of his suit, and their sufficiency for that purpose is the sole question presented.

Heard before Hon. John C. Ptjgi-i. Hill by Frank Allen against William Morton to declare a deed absolute on its face a mortgage and to redeem. From a decree for complainant respondent appeals. The conclusions reached by, the-chancellor in this case that the deed was a mortgage was not authorized by the facts and the law. —Haney v. Robertson, 58 Ala. 27; Tribble v. Single-ion, 158 Ala. 308; West v. Hendricks, 28 Ala. 226.

Heard before Hon. A. H. Benners. Bill by A. E. Wilson against Martha Roebuck and others to enforce an assignment of dower and to set the same apart. Prom a decree dismissing the bill complainant appeals. The facts show a proper case for setting apart to complainant the dower as assignee thereof. — Reeves v. Brooks, 80 Ala. 26; Dixon v. Winslow, 9 South. 260; 92 Ala. 530.

Heard before Hon. W. H. Simpson. The First State Bank of Bridgeport was declared insolvent on a proceeding by the Attorney G-eneral and a receiver was appointed. Pending these proceedings the Nixon State Bank intervened for the collection of the amount of a note owned by it which had been collected by the First State Bank and not remitted.

Heard before Hon. W. H. Simpson. Bill by J. W. Taylor against C. F. Turner and I. B. Tigrett. From a judgment over-ruling a motion to dismiss for want of jurisdiction, holding pleas insufficient, and over-ruling demurrers to the bill, Tigrett appeals.

Heard before Hon. T. L. Sowell. Bill by Howard Lamar against tbe Peerless Coal Company to cancel a lease. From a decree overruling demurrers to tbe bill, respondents appeal.

Heard before Hon. A. H. Benners. Bill by the Birmingham Industrial Company against Lovick W. Phillips for an accounting. Decree for complainant • and respondent appeals. No brief reached the Reporter. The bill has equity. — Phillips v. Birmingham Incl. Go., 161 Ala. 509; 4 Pom., section 1421; 11 Juris. 215. Plea two does not go to the equity of the bill. — 10 111. App. 203; 24 Wend. 203; 23 Pa. St. 23; 9 Iowa 599; 9 Gray 66.

Heard before Hon. L. D. Gardner. Bill by B. H. Greene and others against the city of Montgomery. From a decree for complainants, respondent appeals.

Chancery Court. Heard before Hon. Alfred H. Benners. Bill by T. B. Purdie against Bains Brothers Investment Company for the redemption of certain lands from a municipal tax sale. Prom a decree for complainant respondent appeals. The complainant had a plain and adequate remedy under sections 1328 and 1329, Code 1907. The tender should have been made for taxes and assessment for the year 1909-10. — Section 2093, Code 1907; Frost v. State, 153 Ala. 657.

Heard before Hon. H. A. Sharpe. Bill by the Gilreath Coal & Iron Company against W. J. Francis as trustee to enjoin the sale of collaterals, for an accounting and other relief. From a decree overruling the motion to dissolve the temporary injunction respondent appeals.

Heard before Hon. L. D. Gardner. Bill by J. W. Wright, Jr., against E. W. Wright, to correct and reform a contract, for an accounting and a foreclosure of a mortgage and for a receiver. From a decree overruling demurrers to the bill and confirming the appointment by the register of a receiver, respondent appeals.

Heard before Hon, P. B. Jarman. Application of J. C. Ezell to probate the will of E. N. Powell. Contest by T. C. Shirley. From a decree admitting the will to probate, contestant appeals. The oral charge of the court referred to and assigned as error is as follows: “Gentlemen of the Jury, in this case it is shown that the testatrix, on the 28th day of October, 1909, executed a will disposing of her property.

Heard before Hon. John H. Disque. Action by Mrs. C. C. Walters against O. P. Nicholson in unlawful detainer. An appeal from a judgment of the justice court was dismissed, and defendant appeals. The following is the judgment rendered by the justice of the peace: “December 17, 1910.

Heard, before Hon. J. J. Curtis. Ejectment by the Tennessee Coal, Iron & Railway Company against J. W. Carter. Judgment for plaintiff, and defendant appeals. Before announcing Ms readiness, defendant filed his application to have the personal attendance of witnesses whose depositions had been previously taken by plaintiff, among them Howard Lamar; and, it being-shown that he was out of the state, and had not been subpoenaed, the court overruled the application.

Heard before Hon. Cecil Browne. Ejectment by tbe State of Alabama against Sudie Schmidt to recover lands in the sixteenth section. Judgment for the defendant and the State appeals. The sixteenth section lands in this State were granted to the inhabitants of the several townships for a specific use, viz.: the use of schools. —Act of Congress, approved March 2, 1819; Act of Congress, approved March 2, 1827.

<p> Ejectment. </p> <p>1. Ejectment; Issue; Verdict. — The complainant and facts examined and it is held that a verdict finding for defendant for the lands lying south of the fence row was not responsive to the issues and therefore erroneous.</p> <p>2. Same; Requisites. — In ejectment a verdict for the plaintiff! must describe the lands, but if for defendant it need not describe them, in either case, however, it must be responsive to the issues submitted to the jury.</p> <p>3. Trial; Verdict. — In literature “verdict” is a true saying, but in law it is the answer of a jury concerning matters of fact submitted to them under the issues made by the pleading, as applied to the legal principles laid down by the court for their guidance.</p> <p>Dowdell, O. J., and McClellan and Sayre, J.I., dissent.</p>

Heard before Hon. John H. Disque. Ejectment by Clark Hale against William Chandler. Judgment for defendant and plaintiff appeals. The quitclaim deed offered by Chandler was void because Clark Hale was in adverse possession at the time it was made and at the time it was recorded. — Mahan v. Smith, 151 Ala. 482; Bernstein v. Himes, 60 Ala. 503; section 10, Code 1907. The deed was also void because not recorded within thirty days under sections 1005-1006, Code 1896.

Heard before Hon. Chas. A. Senn. Ejectment by J. W. Farrior against J. C. Parks. Judgment for plaintiff and defendant appeals. The proceedings leading up to the tax sale were not sufficient to give the probate court jurisdiction to sell the land and consequent ly the sale was void. — Driggers v. Cassidy, 71 Ala. 535; Jones v. Pelham, 84 Ala. 211; G-riffin v. Hall, 111 Ala. 601; Crook v. Anniston, 93 Ala. 4. No brief reached the Reporter.

Heard before Hon. Tkavis Williams, Special Judge- Ejectment by Martha E. Mays against J. D. Burleson. Judgment for defendant, and plaintiff appeals. It appears that the land involved in this suit ivas owned by Seth Bottoms, and that both parties trace title back to him. Seth Bottoms was the father of plain' tiff, and died on the 25th day of June, 1904, leaving three children, Martha E. Mays, the plaintiff, Prudence E'. Frederick, and Thomas Bottoms.

Heard before Hon. B. M. Miller. Ejectment by J. M. Ward and others against Charles J. Moore to recover all the timber growing on a described piece of land, together with damages for detention, and for waste and injury to said land. Judgment for defendant and plaintiffs appeal.

Heard before Hon. H. A. Pearce. Ejectment by G. B. Middlebrooks against Nancy E. Saunders. Judgment for defendant and plaintiff appeals. Counsel discuss tbe assignment of errors as to evidence and tbe giving and refusing of charges with tbe insistence that they were erroneous. and prejudicial to appellant, but they cite no authorities in support of their contentions.

Heal’d before Hon. W. W. Pearson. Ejectment by H. T. Graves against A. Wheeler. Judgment for defendant and plaintiff appeals. The plaintiff claims as the only heir of his father and mother, W. D. Graves and Rebecca Graves. The father died about 27 or 28 years prior to April, 1912, and the mother died May 12, 1909.

Heard before Hon. W. W. Pearson. Ejectment by J. L. Hornsby against J. D. Tucker. Judgment for defendant and plaintiff appeals. The court was in error in giving the general charge as the matter of adverse possession was, under the evidence, for the jury.— McCall v. Pryor, 17 Ala. 533; Russell v. Erwin, 38 Ala. 48; Brown v. Cockrell, 33 Ala. 38; Davis v. Caldwell, 107 Ala. 526; Higdon v. Kennemar, 120 Ala. 198.

Heard before Hon. S. L. Brewer. Action in ejectment by Lige Powell and others against Z. I). Winters. Judgments for plaintiff and defendant appeals. If adverse possession could operate against the plaintiffs in this case then plaintiffs could not recover. — Woodstock I. Co. v. Fullemoider, 87 Ala. 584; 3 Pom., secs. 220-398; 4 Lea 105.

Heard before Hon. Mike Sollie. Ejectment by Mary E. Gilbert against J. B. Billups. From judgment for plaintiff:, defendant appeals.

Heard before Hon. Gaston Guntee. • Ejectment by Josephine Lee and others against Yancey Miles. Judgment for plaintiffs, and defendant appeals.

Heard before Hon. Saffold Berney. Detinue by Rosa Curts against N. L. Seeley, individually and as administrator, for a deed. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Act of 1911, § 6, p. 449. It appears from tbe evidence that plaintiff was a granddaughter of John B. Campbell, deceased, and that SJeeley .was tbe administrator of tbe estate of said Campbell.

Heard before Hon. A. H. Glasgow. Proceedings by Mary Rowe to bave a homestead .set apart out of the estate of her deceased husband to which Martha Buttram and others, were parties. Prom a decree awarding her a life estate only in said homestead petitioner appeals.

Original petition in the Supreme Court. Proceedings by the state of Alabama on the relation of the attorney general to impeach William Martin as sheriff of Hale county. The defendant discharged.

Heard before Hon. Gaston Gunter. T. E. Lovejoy was convicted of violating a municipal ordinance of the city of Montgomery, prohibiting engaging in the business of banking without first obtaining a license therefor, and he appealed to the Court of Appeals, which court certified to the Supreme Court the question whether section 6, Acts 1911, p. 54 is constitutional.

Heard before Hon. H. B. Foster. Mandamus by tbe State of Alabama on tbe relation of tbe city of Tuscaloosa against tbe Commissioners Court of Tuscaloosa county, to- require them to pay over to tbe Board of Commissioners of tbe city that sum of money wbicb is due tbe city from tbe general road and bridge tax collected by tbe county from tbe property within tbe municipality. From a judgment granting tbe mandamus respondents appeal.

Heard, before Hon. O. J. Semmes. Mandamus by the State of Alabama on relation of the City of Mobile against the Board of Revenue & Road Commissioners of Mobile County and. others. From a decree sustaining demurrer to the petition, petitioner appeals.

Heard before Hon. H. A. Pearce. Mandamus by the state on the relation of J. N. Ham against S. H. Brock as clerk of the circuit court of Coffee county, to compel said clerk to issue a warrant for the payment of salary alleged to be due relator as judge of the Coffee County Court. Prom an order denying the writ relator appeals. The decision in the case of -Elba Drug Go. v. Lee, 3 Ala.

<p>Appeal from Monroe Law and Equity Court.</p> <p>Heard before Hon. W. G. McCorvey.</p> <p>Mandamus by the State, on the relation of B. H. Stallworth, as sheriff, and another against D. D. Mims, as county treasurer of Monroe county. Judgment for relators, and respondent apeals.</p> <p>It is alleged that in several cases named, wherein it is sought to have the fees paid, defendants were convicted, and that the executions issued against the several defendants have been returned indorsed, “No property found”; that these convicts have been leased by the county, and the proceeds, which have been duly apportioned, were insufficient, under the pro rata distribution prescribed by laiv, to pay more than 57% per cent. of the total amounts of the costs in each of the said cases; that 42y2 per cent, of their fees in each case re-, mains unpaid; that the respondent treasurer has refused upon request to register their said fees as claims against the fine and forfeiture fund of the county, and that he has refused their demand for payment thereof. In the answer to the rule nisi and the agreed statement of facts upon which the case was submitted for trial the material averments of the petition were established, and it further shows that the fees claimed in these cases to which this appeal relates (numbered from 21 to 32) were presented to respondent for registration within 90 days after the respective defendants were convicted and sentenced. The petition contains the general prayer for relief. The trial court issued a peremptory writ commanding respondent to register, and pay claims numbered 21 to 32, and denied relief as to all others, and the respondent appeals.</p> <p>The court should have denied the writ of mandamus prayed for in this case. — Sec. 6889, Code 1907; Local Acts 1898-9, p. 581; 124 Ala. 102.</p> <p>The court properly granted the mandamus and its judgment should be affirmed. — Gray v. Abbott, 130 Ala. 322; secs. 6890-6892, Code 1907.</p>

<p>Appeal from Mobile City Court.</p> <p>Heard before Hon. O. J. Semmes.</p> <p>Mandamus by tbe State on tbe relation of tbe City of Mobile against the Board of Revenue and Road Commissioners of Mobile County and others. Judgment sustaining demurrer to tbe petition, and petitioner appeals.</p> <p>Five separate petitions were filed for writs of mandamus against tbe board of revenue and road commissioners of Mobile county. In cases numbered 738, 739, and 740 tbe petitioner seeks to compel tbe respondent to cause warrants to be issued upon tbe treasurer of Mobile county for tbe payment of certain sums of money alleged to be due petitioner under and by virtue of three several acts of tbe Legislature. These acts, respectively, provide that tbe city of Mobile shall cause to be kept an accurate and true account, first, of- tbe amounts annually expended (beginning with tbe dates of tbe acts) in opening, improving, and maintaining tbe drains and streets of tbe city; second, in caring for tbe inmates of tbe city hospital; and, third, of tbe number of admissions into tbe city pesthouse. They each conclude with this language: “It shall be tbe duty of tbe board of revenue and road commissioners, after an examination of said accounts, and upon finding the-same correct, to pay (one-fourth thereof as to drains and streets, and one-half thereof as to hospital and pesthouse) out of tbe county treasury.” These three cases above named deal with tbe period down to November 30, 1908, and tbe petitions allege that tbe accrued accounts down to that date bad been examined by the board through an expert accountant employed for that purpose, who made bis written report to tbe board in February, 1909, finding tbe city’s account correct to tbe extent of ascertaining an aggregate pro ratum for the city of about $43,000. In cases numbered 741 and 742 it is alleged that the city had kept the several accounts required from January, 1909, to January, 1912, but that the board has neglected and failed to examine and audit same, and the prayer is that it be compelled to do so.</p> <p>Respondents demurred to the petitions in Nos. 738, 739, and 740 on numerous grounds, among others, the following: (|D) Because it does not appear from the said petition that the said claim of the city of Mobile was itemized and sworn to by the said city of Mobile, or some person in its behalf having personal knowledge of the fact as required by section 147 of the Code. (P) Because it is not alleged in said petition that the board of revenue and road commissioners of said county had examined the said account and found the same to be correct. (J) Because there could be no legal authority for the issuance of the warrant upon the treasury of Mobile county until said claim was passed and allowed by the board of revenue and road commissioners of Mobile county, and it is not alleged in said petition that the said claim has been so passed and alloAved. (N) It cannot be definitely ascertained from the said petition Avhat is the just and true amount expended by the city of Mobile in maintaining, opening, Avidening, cleaning, and repairing the drains in said city, and in repairing, cleaning, and maintaining the unpaved streets of said city during each or any one of said years. (R) Because it appears from the said allegations of the said petitions that the petitioner’s only remedy is by mandamus either to compel these respondents to audit and pass upon said claims, or by mandamus against the person Avhose ministerial duty it is to issue a Avarrant, if said claim has been audited and allowed; while, on the other hand, the applicant has a complete and adequate remedy at law for the collection of the same, if the same is just and has been rejected.</p> <p>There were demurrers also to the petition in numbers 741 and 742, on these, among other grounds: (1) Because it does not appear from the said petition that the city of Mobile presented the said accounts to the board of revenue and road commissioners annually for such examination. (3) Because it does not appear from said petition that any demand has ever been made upon the board of revenue or road commissioners to examine said account, or that they have ever been offered or afforded the opportunity to do so.</p> <p>The court sustained the demurrers to the several petitions, and petitioner appeals.</p> <p>The statutes under consideration, and on the authority of which it is contended that the payment sought should be made, are constitutional. — Tinsley Go. v. Powell, 147 Ala. 300; Jefferson County v. State, ex rel. Birmingham, 54 South. 757; Calhoun County v. City of Anniston, 58 South. 225. The statutes are not void for uncertainty. — Gooiola v. Wood-Dioherson, 136 Ala. 536; Morse v. Mosely, 148 Ala. 168; Thompson v. State, 20 Ala. 54. The special method of passing upon the demand is provided, and this supersedes the methods provided by the general statute found in sections 147-150, Code 1907. — Commissioner’s Court v. Rather, 48 Ala. 445; Auditor v. Supervisors, 64 N. TV. 576. The examination and passing upon claims by the county commissioners is purely ministerial. — Comm. Ct. v. Moore, 53 Ala. 25; Jeffersonian Pul). Co. v. Hilliard, 105 Ala. 578. The judge of probate cannot issue his warrant until he had been ordered to do so by the proper authorities. — Smith v. McCutoheon, 146 Ala. 460. No demand was necessary. — 26 Cyc. 442.</p> <p>The statute relative to the pest house was violative of section 45 of the Constitution, and the statute authorizing the county to pay a part of the cost of maintaining the streets of the city is violative .of section 216, Constitution 1901. The statute relative to the pest house is meaningless, as it requires only that the city keep an account of the number of and character of the admissions. However, this may be, the claims here sought were not properly presented for auditing, nor were they presented in the time allowed, nor is any special or different provision made as to their audit or allowance. — Secs. 147, 150, Code 1907; 23 Pac. 1032; Miller v. Paris, 145 Ala. 494. No request or demand has ever been made for an examination of the accounts by the board of revenue. This is "a condition precedent. — Ex parte Edwards, 123 Ala. 102. The accounts have never been audited or passed by the board of Revenue. — Hand v. Stapleton, 135 Ala. 160; 13 Cal. 358; 2 Kan. 123; 13 Ohio St. 394. These facts having never been ascertained and determined, mandamus will not lie. — State, ex rel. v. pangan, 149 Ala. 647; Chilton County v. Southern Ry. Co., 146 Ala. 442; Miller v. Paris, supra; Scarbrough v. Watson, 140 Ala. 351. No one can issue warrants on the county treasurer but the judge of probate, and he cannot do so without authority from the board. — Sec. 146, Code 1907; Norwood v. Clemm, 143 Ala. 556; Smith, v. Mc-Cutcheon, 146 Ala. 458, and authorities supra.</p>

Heard before Hon. John C. Pugh. Application by T. M. Cate to compel W. G. Agee and others, members of the Excise Commission of Jefferson county, to issue petitioner a certificate, authorizing the issue of liquor license to him for the year 1912. From a judgment awarding the writ, respondents appeal. Counsel discuss the appeal on its merits with citations of authority, but in view of the opinion it is not deemed necessary to here set them out.

Original petition in the Supreme Court. Application by J. T. Watters and others, for writ of mandamus to review certain interlocutory rulings and orders made by the judge of the Law and Equity Court of Mobile, in an election contest proceedings. Appeals are of statutory origin, and if the statute gives no remedy, there is none. —155 Ala. 218. The right of contest of a municipal election is given only by section 1168, Code 1907.

Petition by the State through its Attorney General, for certiorari to the Court of Appeals, to review the judgment of that court, reversing the judgment of the lower court in the case of State v. J. Scurry Clark, 4 Ala. App. 202; 59 South. 236, charged with selling lightning rods without license. Under the statement of facts in this case as agreed to by both parties, the defendant ivas not engaged in interstate commerce. — General Oil Co. v. Crane, 209 U. S. 212.

Heard before Hon. W. W. Haralson. Certiorari by L. B. Stephens and others against the Court of County Commissioners of Cherokee County to quash and annul an order creating stock law district. From an order denying their petition, petitioners, appeal. The petition, as set out in Exhibit A, is as folloivs: “We, the undersigned, citizens of beat 8, will ask the commissioners’ court to grant a stock law. election in said beat” — and is signed by a number of persons.

Heard before Hon. H. A. Pearce. Petition by J. J. Wright for certiorari to quash and annul the proceedings of the court of commissioners of Geneva county establishing a stock law district. Prom an order denying the writ, the petitioner appeals. The court is of limited jurisdiction, and every jurisdictional fact must appear of record. — Mayfield v. Com, Ct., 148 Ala. 548; Brazeel v. Blount County, 155 Ala. 196.

Petition by Blaine Burnett for certiorari to the Court of Appeals to review its judgment in the case of So. Ry. Co. v. Blaine Burnett, reported in 6 Ala. App. 568; 60 South. 472. Counsel discuss the merits of the appeal, together with citation of authority, all of which are set out in the brief of appellee as reported in 6 Ala. App. 568, but do not discuss the proposition here decided.

Heard before Hon. Hugh D. Merrill. Assumpsit by A. J. Smith against O. M. Alexander. Judgment for plaintiff and defendant appeals. The first three counts were the common counts. The fourth was for breach of contract based upon the letter referred to in the opinion, as were the fifth and sixth counts. The facts appear in the opinion.

Heard, before Hon. C. C. Nesmiti-i. Assumpsit by James A. Friddle against Louis Braun. Judgment for defendant, and plaintiff appeals. Count 6 is as follows: “Plaintiff claims of defendant, to Avit, $3,000, for the breach of a contract made on, to wit, the 14th day of September, 1910, which contract is set out in the first count of this complaint, and is referred to therein and made a part of this count, the same as if fully set out in this count.

Heard before Hon. A. E. Gamble. Assumpsit by M. E. Chesser against Mary E. Motes. Judgment for defendant, and plaintiff appeals.

Heard before Hon. M. Sollie. Assumpsit by the Farmers’ Bank of Clio against C. W. Mizell Judgment for plaintiff, and defendant appeals. The claim is based upon a contract which is in effect a joint note and mortgage agreeing to pay the Farmers’ Bank of Clio the sum of $2,000 by or before November 11, 1908, and conveying, as security therefor, all the live stock and crops for that year, and all crops for the years 1911, 1912, 1913,' 1914, and 1915.

Heard before Hon. Gaston Gunter. Assumpsit by the Exchange National Bank of Montgomery against Fred C. Briel. Judgment for plaintiff and defendant appeals. For the former appeal in this case, see 172 Ala. 475; 55 South. 808.

<p>Certiorari to Court of Appeals.</p> <p>Petition by Richard & Thalheimer for certiorari to •the Court of Appeals, to review the judgment and decision of that court reversing the decision of the trial court in the case of Kornegay v. Richard & Thalheimer, revived in the name of Russell as Administrator of Kornegay, and reported in 6 Ala. App. 73; 60 South. 411.</p> <p>There is no question but what appellees paid their money to appellant while acting under a mistake of material fact, and that neither knew that the -mortgage held by appellant was a forgery; hence, plaintiffs were entitled to recover in this case, as for money paid under a mistake of fact. — Young v. Lehman-Durr & Go., 63 Ala. 519; Hunt v. Matthews, 132 Ala. 286; Rutherford ■ v. Mc-Keever, 21 Ala. 750; 78 N. E. 153; 13 Am. St. Rep. 391; sec. 4980, Code 1907.</p> <p>The court in determining this case did not violate any prior decisions of the Supreme Court, their conclusions were correct, and they properly applied the law. Hence, there is no office for the writ of certiorari to perform. — A la. Hat. Bank v. Rivers, 116 Ala. 1; M. & M. R. R. Go. v. Felrath, 67 Ala. 189; Gardner v. Allen, 6 Ala. 8; Wilson v. Sargent, 12 Ala. 778; Merrill v. Brantley, 133 Ala. 537.</p>

Heard before Hon. Edward J. Gilder. Action by Eliza A. Pence against tbe Mutual Benefit Life Insurance Company on tbe policy issued on tbe life of Charles C. Pence. From a judgment for defendant plaintiff appeals. There is no necessity to cite any other authority to show that the complaint was good except Form 12, section 5382, Code 1907.

Action by the City National Bank of Selma against H. T. Bledsoe. Judgment for plaintiff was affirmed by the Court of Appeals (7 Ala. App. l62* 60 South. 942), and defendant petitions for a writ of certiorari. The instrument sued on is as follows: “Selma, Ala., June 8, 1910. $250.00. On or before the 15th day of December, 191.0, for value received, I promise to pay to the Siegel Automobile Co., of Selma, Ala., or order, the sum of two hundred and fifty and no/100 dollars.

Heard before Hon. Samuel B. Browne. Assumpsit by Albert P. Busb against Julia F. Russell. Judgment for defendant, and plaintiff appeals. The substance of the contract sufficiently appears from the opinion.

Appear from Geneva Circuit Court. Heard before Hon. H. A. Pearce. Assumpsit by P. E. Greer against the Malone-Beall Company. Judgment for defendant, and plaintiff appeals.

Heard before Hon. Samuel B. Browne. Action by the McClure Lumber Company against the Central Lumber & Timber Company in assumpsit on the common counts. Judgment for plaintiff, and defendant appeals.

Heard before Hon. A. E. Gamble. Action by Sam Rubenstein against J. C. McLendon to recover rent, begun by attachment. Judgment for plaintiff, and defendant appeals.

Petition by A. L. Martin, and others, for certiorari to the Court of Appeals to review their judgment and decision reversing the trial court in the cause of Town of Clayton v. A. L. Martin et al., reported in 7 Ala. App. 190; 60 South. 963.

Heard before Hon. M. Sollie. Action by Janie Sherry against the National Hnion upon a benefit, certificate issued on the life of J. Sherry. Judgment- for plaintiff and defendant appeals. The various pleas to which demurrers were sustained sufficiently presented the defenses of breach of warranty and misrepresentation, and the court erred in sustaining said demurrer. —Hunt v. Preferred Accident Co., 172 Ala. 444.

Heard before Hon. Saffold Berney. Action by tbe County of Mobile against Price Williams, Jr., Judge, to collect moneys alleged to have been illegally paid him. Judgment for defendant, and plaintiff appeals. Tbe facts sufficiently appear in tbe opinion.

<p>Appeal from Montgomery City Court.</p> <p>Heard before Hon. J. M. Chilton, Special Judge.</p>