Volume 210 — Alabama Reports

<p>Appeal from Circuit Court, Etowah County ; O. A. Steele, Judge.</p> <p>Action for libel by Louella Kirkpatrick against the Journal Publishing Company and others. From a judgment overruling demurrer to defendants’ plea, plaintiff takes a non-suit and appeals.</p> <p>A plea of justification must allege facts going to prove the truth of the charge and must aver that it was published without malice. Advertiser Co. v. Jones, 169 Ala. 203, 53 South. 759; Ferdon v. Dickens, 161 Ala. 181, 49 South. 888; Krulic v. Petcoff, 122 Biinn. 517, 142 N. W. 879, Ann. Cas. 1914D, 1056; Atteberry v. Powell, 29 Bio. 429, 77 Am. Dec. 579; 17 R. C. L. 399. The averment that the publication set out is substantially true does not meet the requirements. 17 R. C. L. 399; Dowie v. Priddle, 216 111. 553, 75 N. E. 243, 3 Ann. Cas. 526; 45 La. Ann. 863, 13 South. 203, 21 L. R. A. 507; 75 N. I-I. 215, 72 Atl. 689, 31 L. R. A. (N. S.) 139; 94 Neb. 813, 144 N. W. 810, 50 L. R. A. (N. S.) 1042.</p> <p>When the truth of the article is asserted, in a plea, it is not essential that the defendant also rehut malice. Fertlon v. Dickens, 161 Ala. 1S1, 49 South. 888; Schuler v. Fisher, 167 Ala. 184, 52 South. 390; Bigly v. National F. & O. Co., 94 Neb. 813, 144 N. W. 810, 50 L. R. A. (N. S.) 1040; Cook v. Pulitzer Pub. Co., 241 Mo. 320, 145 S. W. 400; Courier Journal Oo. v. Phillips, 142 Ky. 372, 134 S. W. 446, 32 L. R. A. (N. S.) 309. “Subsi antially true” means true without qualification in all material respects. Jeffrey v. ITnitod Order, 97 Me. 170, 53 Atl. 1102; France v. ¿Etna Co., 9 Fed. Cas. No. 5027, p. 057; 7 Words and Phrases, 0742.</p>

Gamble, Judge. Action in ejectment by W. M. Barksdale against H. T. Ellenburg. Prom a judgment for plaintiff, defendant appeals. The burden is on the plaintiff to show the lands sued for are those described in the complaint and covered by the deed relied on. 19 C. J. 1148; Busbee v. Thomas, 175 Ala. 423, 57 South. 587; Swindall v. Pord, 184 Ala. 137, 63 South. 651; So. Steel Oo. v. Stowers, 189 Ala. 314, 66 South. 677.

Locke, Judge. Bill for divorce and custody of child by D. B. Cooper against Ida Lou Cooper and cross-bill by Ida Lou Cooper. Erom a decree dismissing the original bill and granting relief to respondent on her cross-bill, complainant appeals. Jurisdiction is necessary before a valid decree pro confesso can be entered. It cannot be conferred by consent of the parties, or by estoppel, and the want of it may be raised for the first time on appeal. 21 C. J. 791; Ivarthaus v. Ry.

Brickell, Judge. Action by Lillian M. Plemmons against the New Morgan County Building & Loan Association and others. From a judgment for plaintiff, the named defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. It is error to permit recovery of wearing apparel in the absence of evidence' of its value. Stewart & Bros. v. Harris, etc., Co., 6 Ala. App. 518, 60 South. 446.

<p>Appeal from Probate Court, Montgomery County; D. W. Crosland, Judge.</p> <p>Petition of Willie V. Whitfield and R. M. Vandiver, to probate the will of Sallie P. Vandiver, deceased, with contest by Clara V. Park. From a decree admitting the will to probate, contestant appeals.</p> <p>The following are charges given at proponents’ request:</p> <p>“2. I charge you that the burden of proving to your reasonable satisfaction that Mrs. Sallie P. Vandiver was, when she executed the will in question, under the domination and control of Mrs. Willie V.. Whitfield, or members of her family, or persons in her employ, and that said will is the result and product of undue influence exercised by them, or some of them, over the mind of the deceased, and was not the result of the exercise of the deceased’s own volition, is upon the contestant, Clara V. Cla^k, and if she has failed to so reasonably satisfy your minds, then you must return a verdict in favor of the will and declare it to be the last will and testament of Mrs. Sallie P. Vandiver.</p> <p>“3. I charge you that the law presumes that Mrs. Sallie P. Vandiver had mental capacity to make this will, and was free from undue influence, and the burden is upon the contestant, Clara V. Park, to reasonably satisfy you from the evidence in this case that Mrs. Sallie P. Vandiver was unduly influenced in making it, ■and if yon are not so reasonably satisfied, then you must return a verdict in favor of the will, and declare it to be the last will and testament ■of Mrs. Sallie P. Vandiver, deceased.”</p> <p>“54. Undue influence to vitiate a will must have been actually exercised to produce the particular will, and this must be operative at the very time of the execution of the will, and the burden of proving that such influence was undue, and was operated at the time of the ex•ecution of the will, and caused its execution ■contrary to the free and independent wishes of the testatrix, is upon the contestant, Mrs. Park, and not upon the proponents.”</p> <p>“40. The fact, if it be a fact, that there was a confidential relationship existing between Mrs. Vandiver and her daughter, Mrs. Whitfield, and Mrs. Whitfield sent for the attorney who prepared Mrs. Vandiver’s will, does not of itself raise any presumption of undue influence n.or does it place upon Mrs. Whitfield or R. M. Vandiver, proponents of the will, the burden of ■showing that there was no undue influence.</p> <p>“41. If you believe from the evidence in this •case that at the time Mrs. Vandiver executed this will, she sought and obtained independent advice and counsel, and are reasonably satisfied from the evidence that her will was the voluntary act of her mind, then I charge you that you must find in favor of the will.”</p> <p>Charge A, refused to contestant, is as follows:</p> <p>“If a testatrix is given a false impression •concerning persons who are the natural objects of her bounty, so that when she comes to make her will she acts upon unfounded beliefs and gives or withholds her bounty in a manner entirely different from what her action would have been had it not been based on false beliefs and opinions deliberately instilled into her mind for the purpose of influencing her will, and if in such case the testatrix is not in position, from any cause, as sickness, age, debility, concealment of the true facts, or other reason, to judge for herself and to deliberate •or resist the influence, and the will is the result •of them, it is invalid from undue influence.”</p> <p>Charge 1, given for contestant, reads:</p> <p>“If you believe from the evidence that at the time of the execution of the instrument offered for probate there existed between Mrs. Van-diver and her daughter, Mrs. Whitfield, a confidential relationship, in which relationship Mrs. Vandiver reposed confidence and trust in her said daughter, that Mrs. Whitfield is a large beneficiary under her mother’s will, and that Mrs. Whitfield was active in and about the preparation and execution of the will, such as the initiation of proceedings for the preparation of the will, procuring the attorney who •drew the will, and the like, I charge you that the law raises a presumption of undue influence exercised by Mrs. Whitfield over her mother, and casts upon her the burden of showing that the execution of the will offered for probate was not induced by coercion or fraud on her part, directly or indirectly.”</p> <p>Testimony as to advances made by testator to Henry Vandiver was aside the issue, and should not have been allowed. Schieffelin v. Sehieffelin, 127 Ala. 15, 28 South. 687; Smith v. Smith, 174 Ala. 205, .56 South. 949. The testimony of witness Hoene with reference to the balance sheet of the Vandiver Grocery Company was objectionable. Bolling v. Fannin, 97 Ala. 621, 12 South. 59. Where the evidence negatives the prevalence, at the time, of dominance of the parent, and sufficient activity is shown on the part of the child, the burden shifts to the child to show the justice and fairness of the transaction. Charges 2, 3, and 54, given for proponents, were erroneous. Gibbons v. Gibbons, 205 Ala. 636, 88 South. 833; Bancroft v. Otis, 91 Ala. 291, 8 South. 286, 24 Am. St. Rep. 904. A charge ignoring the requirement that independent advice of counsel must be competent is erroneous. Holt v. Agnew, 67 Ala. 360; McQueen v. Wilson, 131 Ala. 606, 31 South. 94. Charge A, requested by contestant, should have been given. Cog-hill v. Kennedy, 119 Ala. 641, 24 South. 459.</p> <p>In all transactions between parent and child, the parent is presumably the dominant party; and even activity on the part of the child in procuring the will to be written, etc., raises no presumption of undue influence. Keeble v. Underwood, 193 Ala. 586, 69 South. 473; Hawthorne v. Jenkins, 182 Ala. 255, 62 South. 505, Ann. Cas. 1915D, 707; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22. Proof of independent, competent advice overcomes any presumption of undue influence that may arise from the beneficiary’s conduct. Betz v. Lovell, 197 Ala. 239, 72 South. 500; Jones v. Brooks, 184 Ala. 120, 63 South. 978. The law presumes that the testatrix, in executing her will, had mental capacity and was free from undue influence; age raises no presumption to the contrary. Johnston v. Johnston, 174 Ala. 225, 57 South. 450; Barnewall v. Murrell, 108 Ala. 389, 18 South. 831; Bancroft v. Otis, 91 Ala. 290, 8 South. 286, 24 Am. St. Rep. 904; Posey v. Donaldson, 189 Ala. 366, 66 South. 662. The motives of a testatrix in making unusual gifts and the financial condition of the beneficiaries can be explained. Gaither v. Phillips, 199 Ala. 695, 75 South. 295; Posey v. Donaldson, supra. Sehieffelin v. Sehieffelin, 127 Ala. 36, 28 South. 687; Eastis v. Montgomery, 95 Ala. 492, 11 South. 204, 36 Am. St. Rep. 227; Little v. Ennis, 207 Ala. Ill, 92 South. 167. Evidence as to testatrix’s self-determination was entirely relevant. Moore ■V. Spier, 80 Ala. 129; Knox v. Knox, 95 Ala. 504, 11 South. 125, 36 Am. St. Rep. 235.</p>

<p>Appeal from Circuit Court,' Elmore County; B. K. McMorris, Judge.</p> <p>Action by J. H. Collier and others, as trustees of the Carolina Methodist Episcopal Church South, against John A. Smith, Sr., Rufus Gilliland, and Mack Gilliland. From a judgment for plaintiffs, defendants appeal.</p> <p>When the original possession by the holder of land is in privity with title of the rightful owner, in order to enable such holder, to avail himself of the statute of limitations, nothing short of an open and explicit disavowal and disclaimer of holding under that title, and assertion of title in himself brought home to the other party will satisfy the law. Zeller v. Eckert, 4 How. 289, 11 L. Ed. 979; Folmar v. Beall, 204 Ala. 298, 85 South. 543. The defendants were due the general affirmative charge. Smith v. Collier, 207 Ala. 635, 93 South. 648; Garrow v. Toxey, 188 Ala. 578, 66 South. 443; Seaboard v. Banks, 207 Ala. 194, 92 South. 117; Stewart v. White, 128 Ala. 202, 30 South. 526, 55 L. R. A. 211.</p> <p>Defendant Smith alone having appealed, and no notice given to other defendants, the appeal should be dismissed. Acts 1911, p. 589; Walsh v. Hill, 109 Ala. 410. 53 South. 746. When plaintiffs show their long uninterrupted user, and, an alleged act of trespass being committed by defendants, make out a prima facie case, the burden shifts to the defendants to justify their act. Dick v. Darden, 204 Ala. 400, 85 South. 369; Vidmer v. Lloyd, 184 Ala. 160, 63 South. 943; Higdon v. Kennemer, 120 Ala. 198, 24 South. 439. There being evidence reasonably affording an inference adverse to defendants, the court properly refused the affirmative charge. McMillan v. Aiken, 205 Ala. 35, 88 South. 135; Bowen v. Hamilton, 197 Ala. 418, 73 South. 5; Card Lbr. Co. v. Reed, 202 Ala. 322, 80 South. 404.</p>

Bill of interpleader by W. Langston Hay-good and Lena B.’ Haygood against the Georgia Casualty Company and others. From the decree, respondent Georgia Casualty Company appeals.

B. Smith, Judge. Suit on fire insurance policy by Wade H. Nichols against the' New Brunswick Fire Insurance Company. From a judgment for plaintiff, defendant appeals. A lessee of real estate, holding an option to purchase, is not the sole and unconditional owner nor fee-simple owner thereof, within the meaning of these terms as used in the standard New York fire insurance policy. Joyce on Insurance, 2044; Finlon v. National Union Fire Ins.

Action for damages for assault and battery and unlawful arrest, etc., by A. N. Orr against W. C. Wilson and the -National Surety Company. Erom a judgment for plaintiff, defendants appeal. When there is no arrest, there can be no recovery for false imprisonment. Dougherty v. State, 106 Ala. 05, 17 South. 393; 20 L. R. A. (N. S.) 96S, note.

<p>Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.</p> <p>Appeal by the Southern Railway Company and others to the circuit court, in equity, Montgomery county, from an order of the Alabama Public Service Commission in a proceeding by the Alabama Company and others against the Southern Railway Company and others. From a decree affirming the order of the Commission, defendants appeal.</p> <p>The Public Service Commission bas no jurisdiction to initiate special industrial rates. State v. L. & N. R. Co., 197 'Ala. 203, 72 South. 494; Lake Shore, etc., Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858; Beardsley v. N. Y., L. E. & W., 162 N. Y. 230, 56 N. E. 488; Com. v. A. C. L., 106 Va. 61, 55 S. E. 572, 7 L. R. A.- (N. S.) 1086, 117 Am. St. Rep. 983, 9 Ann. Cas. 1124; State v. Great Northern, 17 N. D. 370, 116 N. W. 89; State v. Bonneval, 128 La, 902, 55 South. 569, Ann. Cas. 19120, 837; C., R, I. & P. R. Co. v. Ketchum (D. O.) 212 Fed. 986. Am. Rep. R. R. Com. Ala. 1911-12p. 36; Id. 1915-16, pp. 71, 99, 167, 168; "Acts 1907 (S. SOp.'iO, § 14%-; Acts 1920, p...94,. § _JLB; 41 lOST"Stat_464, § 208; Robertson v. Downing, 127 U. S. 607, 8 Sup. Ct. 1328, 32 L. Ed. 269; U. S. v. Hermanos, etc., 209 U. S. 337, 28 Sup. Ct. 532, 52 L. Ed. 821.</p> <p>Whether a rate is unduly preferential or discriminatory is a question of fact, not of law, and within the province of the Commission to determine. T. & P. v. I. C. O., 162 U. S. 197,' 16 Sup. Ot. 666, 40 L. Ed.-940; C., N. O. & T. P. v. I. C. C.. 162 U. S. 184, 16 Sup. Ct. 700, 40 L. Ed. 935; I. C. C. v. Ala. Mid. R., 168 U. S. 144, 18 Sup. Ot. 45, 42 L. Ed. 414; L. & N. R. Go. v. Behlmer, 175 U. S. 648, 20 Sup. Ot. 209, 44 L. Ed. 309; N. Y., N. H. & H. R. Co. v. I. C. O., 200 U. S. 361, 26 Sup. Ct. 272, 50 L. Ed. 515; Penna. Co. v. U. S., 236 U. S. 351, 35 Sup. Ct. 370, 59 L. Ed. 616; B. & O. v. Pitcairn Coal Co., 215 TJ. S. 485, 30 Sup. Ct. 164, 54 L. Ed. 292. Robinson v. B. & O. R. 'Co., 222 U. S. 506, 32 Sup. Ct. 114, 56 L. Ed. 288; Morrisdale Coal Co. v. Penna. Co., 230 U. S. 304, 33 Sup. Ct. 938, 57 L. Ed. 1494; Mitchell v. Penna. Co., 230 U. S. 247, 33 Sup. Ct. 916, 57 L. Ed. 1472; Penna. Co. v. Int. Coal Min. Co., 230 U. S. 184, 33 Sup. Ct. 893, 57 L. Ed. 1446, Ann. Cas. 1915A, 315. The rates in question are not preferential or special industrial rates, within the purview of Acts Sp. Sess. 1907, p. 40, § 14%, but are rates subject to be changed by tbe commission. Code 1907, §§ 5668, 5651, 5676 et seq.; 41 U. S. Stat. 456; 197 Ala. 203, 72 South. 494; L. & N. R. Co. v. Fulgham, 91 Ala. 555, 8 South. 803; Anniston Mfg. Co. v. Sou. Ry., 145 Ala. 351, 40 South. 965; L. & N. R. Co. v. Com., 108 Ky. 628, 57 S. W. 508; Hoover v. Penna. Co., 156 Pa. 220, 27 Atl. 282, 22 L. R. A. 263, 36 Am. St. Rep. 43; I. C. C. v. B. & O., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699.</p>

Bill by the Holland-Blow Stave Company against E. D. Whitman and James A. Foreman, as Sheriff of Morgan County. From a decree denying relief, complainant appeals.

<p>Appeal from Circuit Court, Morgan County; Osceola Kyle, Judge.</p> <p>Jim Reeder wqs convicted of murder in the first degree, and appeals.</p> <p>Charges 30 and 31, given for defendant, are as follows:</p> <p>“30. If there is a probability of defendant’s innocence, he should not be found guilty.</p> <p>“31. The probability of defendant’s innocence is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal.”</p> <p>After reading charge 30 to the jury, the court stated:</p> <p>“Now, I explain that charge to you by saying that the word ‘probability’ means that, if there is more evidence of the defendant’s innocence than there is of his guilt, then ho should be found ‘not guilty.’ ”</p> <p>And after reading charge 31, stated:</p> <p>“I explain that charge to you, gentlemen, by saying this word ‘probability’ means if there is more evidence of his innocence than there is of his guilt, which means that if there is more evidence of the defendant’s innocence than there is of his guilt, that there is a just foundation for a reasonable doubt of his guilt, and therefore for his acquittal.”</p> <p>The following charges were refused to defendant:</p> <p>“9. I charge you, gentlemen of the jury, that if you could reasonably construe the evidence in this case so as to find that some party other than the defendant killed the deceased, then you must acquit the defendant, although you believe it probable that the defendant killed the deceased.</p> <p>“10. I charge you, gentlemen of the jury, that although you may think that it is probable that the defendant killed the deceased, still, if you can reasonably construe the evidence in such a way as to be consistent with the theory that some one other than the defendant killed the deceased, you must acquit him.</p> <p>“14. I charge you, gentlemen of the jury, that, before you should convict the defendant in this case, the hypothesis of guilt should flow naturally from facts proven and be consistent with all of them.</p> <p>“22. I charge you that, if the testimony in this case in its weight and effect be such as that two conclusions can be reasonably drawn from it, the one favoring the defendant’s innocence and the other tending to establish his guilt, you must acquit the defendant, although you think it probable that he is guilty.</p> <p>“23. I charge you, gentlemen of the jury, that, if the witness Mrs. Morgan has been contradicted in any material fact, then you may disregard her entire testimony, if you see proper so to do.</p> <p>“24. I charge you, gentlemen of the jury, that, if any witness in this case had sworn falsely to any material fact in this case, then you may disregard his or her entire testimony, if you see proper so to do.</p> <p>“25. I charge you that, if any witness has been contradicted upon any material fact in this case, then you may disregard his or her testimony, if you see proper so to do.</p> <p>“37. I charge you, gentlemen of the jury, that what the solicitor has said in his closing argument in this case is not evidence, and the only evidence in this case is the testimony of the witnesses that have been introduced, and you, and each of you, should be convinced beyond a reasonable doubt, from the evidence in the ease, that the defendant is guilty before convicting the defendant.”</p> <p>The indictment was insufficient in designating the name of the child alleged to have been killed. Jones v. State, 63 Ala. 27; Butler v. State, 17 Ala. App. 511, 85 South. 864; O’Brien v. State, 91 Ala. 27, 8 South. 560; Momingstar v. State, 52 Ala. 405; Wilson v. State, 128 Ala. 17, 29 South. 569. Charge 14 was a correct statement and should have been given. Gilmore v. State, 99 Ala. 154, 13 South. 536; Brown v. State, 150 Ala. 25, 43 South. 194; Neilson v. State, 146 Ala. 683, 40 South. 221. Charges 10, 23, 24, and 25 were each correct and should have been given. Bryant v. State, 116 Ala. 445, 23 South. 40; Churchwell v. State, 117 Ala. 124, 23 South. 72.</p> <p>The person killed was sufficiently designated, and demurrer to the indictment was properly overruled. Eeese v. State, 90 Ala. 624, 8 South. 818. Where no exception is reserved to oral instructions, nothing is presented for review. Ex parte State, 204 Ala. 389, 85 South. 785. Charges 9, 10, and 22 were bad in form. Lee v. State, 18 Ala. App. 566, 93 South. 59. Charges not predicating the finding of the jury upon consideration of the evidence are bad. Edwards v. State, 205 Ala. 160, 87 South. 179.</p>

Jones,' Judge. Bill by tbe Alabama Great Southern Railroad Company against the Alabama Public Service Commission and the members thereof. Prom a decree denying relief, complainant appeals.

<p>Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.</p> <p>Bill by Fred H. Foy and others against Helen A. Dent and others. From the decree rendered, both parties appeal.</p> <p>The court may, in its discretion, allow solicitor’s fees to be paid from the proceeds of sale, for service rendered for the benefit of all. De Ramus v. De Ramus, 205 Ala. 219, 87 South. 354; Bidwell v. Johnson, 191 Ala. 195, 67 South. 985. This court will, if it sees fit to allow a fee, fix it at a reasonable amount, regardless of the testimony -of witnesses. Citizens’ Co. v. Central Co., 200 Ala. 18, 75 South. 330; Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Fowler v. Equitable Tr. Co., 141 U. S. 411, 12 Sup. Ct. 8, 35 L. Ed. 794; Harrison v. Perea, 168 U. S. 311, 18 Sup. Ct. 129, 42 L. Ed. 478. • A penalty cannot attach to this decree. Code 1907, § 2893j 2 Words and Phrases, 1864, 1812; Hooks v. Bank, 18 Ala. 451.</p> <p>Attorney’s fees in partition proceedings are governed by sections 3010 and 5219 of the Code. Musgrove v. Aldridge, 205 Ala. 190, 87 South. 803; Butler v. Fuller, 204 Ala.- 272, 85 South. 539; Long v. Long, 195 Ala. 560, 70 South. 733; Bidwell v. Johnson, 191 Ala. 195, 67 South. 985. The judgment of the court should have carried a 10 per cent, penalty. Code 1907, § 2893.</p>

<p>Certiorari to Court of Appeals.</p>

B. Smith, Judge. Action by John Doe, on the demise of the Windsor Realty Company, against Mary E. Finnegan. From a judgment for defendant, plaintiff appeals. No brief reached the Reporter. No brief reached the Reporter.

Carmichael, Judge. Action by the Beltona Coal & Mining Company against James F. Hawkins, as Tax Collector of Jefferson County, to recover taxes paid under protest. From a judgment for defendant, plaintiff appeals. The improvements added by the adjusters were included in the real estate1 23***7 assessment, and the statute does not authorize a severance. Acts 1919, p. 282; Purifoy v. Lamar, 112 Ala. 123, 20 South. 975; Tenn. & Coosa R. Co. v. E. Ala. R. Co., 75 Ala. 516, 51 Am.

M. Robinson, Judge. Petition by J. A. .Howell to probate an instrument as the last will of J. E. J. Howell, deceased, with contest by Lizzie Howell. From a decree for contestant, proponent appeals.

Action for damages by F. D. Freeman against' the Southern Life & Health Insurance Company and R. L. Darrell. From the judgment, plaintiff appeals. The inference or presumption arising from proof of ownership of the automobile which caused the collision required the submission of the question of liability of the insurance company to the jury. Patterson v. Millican, 12 Ala.

Walker, Judge. Bill for divorce by W. O. Sims against Agnes M. Sims. From a decree overruling demurrer to the bill, respondent appeals. The bill was prematurely filed. The two-year period necessary to run in order to give appellee a cause of action began on February 20, 1921, and was not completed until the end of the day of February 20, 1923. Owen v. Slatter, 26 Ala. 547, 62 Am.

Original petition by Fannie M. Barkley for writ of mandamus to Hon. Walter B. Jones, as Judge of the Circuit Court, Montgomery County. The petitioner is entitled to the benefit of section 2879 of the Code, as amended'by Acts 1915, p. 715. Peters v. Schuessler, 208 Ala. 627, 95 South. 26. The facts in this case do not bring the petitioner within the provisions of the statute.

K. McMorris, Judge. • Bill in equity by J. Bice & Sons against W. C. Robinson, for specific performance of a contract to convey lands, and for accounting. From a decree denying the relief prayed, and dismissing the bill, complainants appeal. It was error to dismiss the bill in this case.

<p>Appeal from Oircuit Court, Mobile County; Saffold Berney, Judge.</p> <p>Claim suit instituted by J. H. Bearry and the People’s Bank of Mobile against the Gilchrist-Pordney Company, plaintiff in an execution against John S. Bolton and others. Prom a judgment for claimants, plaintiff appeals.</p> <p>A conveyance .by an embarrassed debtor, absolute in form, but intended only as security for a pre-existing debt, is fraudulent and void as to existing creditors of the grantor; and property so conveyed is subject to execution at law, the title remaining in the original debtor. I-Iill v. Rutledge, 83 Ala. 162, 4 South. 135; Hartshorn V. Williams, 31 Affi. 149; Lewis v. Bank, 204 Ala. 689, 87 South. 176; Ruse v. Bromberg, 88 Ala. 619, 7 South. 384; Campbell v. D'avis, 85 Ala. 56, 4 South. 140; Smith’s Ex’r v. Cockrell, 66 Aa. 64; Howard v. Cove. , 126 Ala. 290, 28 South. 682; Pritchett v. Pollock, 82 Ala. 169, 2 South. 735. As to whether an"instrument is a mortgage or not, see 27 Cyc. 1010; Williams v. Reggan, 111 Ala. 621, 20 South. 614; Teague v. Bass, 131 Ala. 427, "31 South. 4; Where the weight of the evidence against the verdict is so great as nto convince the court the substantial ends of justice requires the examination of the facts by another jury, the verdict should be set aside and a new trial ordered. So. Ry. v. Lollar, 135 Ala. 375, 33 South. 32; Birmingham R. Co. v. Owens, 135 Ala. 154, 33 South. 8; Mary Lee Co. v. Chambliss, 97 Ala. 171, 11 South. 897; So. Ry. v. Carolina Co., 171 Ala. ,427, 55 South. 134. A party is not hound absolutely by whatever his witnesses may say,' and he may introduce evidence that contradicts said witnesses. Thomas v. State, 206 Ala. 416, 90 South. 29o; Upson v. Raiforfl, 29 Ala. 188; Childers v. Holmes, 207 Ala. 382, 92 South. 615; Gilliland v. Armstrong, 196 Ala. 513, 71 South. 700; L. & N. v. Wynn, 166 Ala. 413, 51 South. 976; Ala. P. & I. Co. v. Minyard, 205 Ala. 140, 88 South. 145.'</p> <p>If the bill of sale was absolute, for a valuable, adequate consideration, and there was no intent to hinder, delay, or defraud creditors, it is valid, and is not subject to attack from the grantor’s creditors. Waddle v. Great So. Phos. Co., 184 Ala. 346, 63 South. 462; London v. G. L. Anderson Brass Works, 197 Ala. 16, 72 South. 359. The Supreme Court will not reverse an order refusing a new trial, unless, after allowing all reasonable presumptions, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, 92 Ala. 630, 9 South. 738; N. C. & St. L. v. Crosby, 194 Ala. 33S, 70 South. 7; Ala. Steel & Wire Co. v. Thompson, 166 Ala. 460, 52 South. 75; Deming Co. v. Bryan, 2 Ala. App. 317, 56 South. 754; Salmon v. Salmon, 13 Ala. App. 510, 69 South. 304; Johnson v. Carden, 187 Ala. 142, 65 South. 813; Central, etc., Co. v. Williams, 200 Ala. 73, 75 South. 401. Since all of the testimony in this case was given by witnesses introduced by the plaintiff, it is bound by their testimony, and cannot be heard to complain because the jury believed the testimony introduced by it, and found a verdict accordingly.</p>

<p>Appeal from Circuit Court, Mobile County; SafCold Berney, Judge.</p> <p>Bill in equity by Adele Emily Danne against Gustave Albert Stroeeker and others, to set aside a decree of sale of the probate court. From a decree sustaining demurrers to the bill, complainant appeals.</p> <p>Sections 22, 23, and 24 of the bill as amended are as follojvs:</p> <p>“(22) Oratrix says further that before purchasing the house, No. 10 North Lawrence street, said Catherine Arata, under whom the demurrants claim, had notice of and knowledge that the judgment of the probate court, under which said sale of said house had been authorized, had been procured, to he so authorized by the fraud of the executors of the deceased, which consisted in secreting from the knowledge of the said probate court, the fact that the deceased, at the time of her death, was possessed of a large amount of personal property, in value far exceeding the amount of claims against the estate of the deceased, and which was affected by the violation by said executors of the provisions of the Code of 1907, § 2579, which enacts that it is the duty of every executor or administrator, immediately after taking out letters, to collect and take into his possession the goods and chattels, money, books, papers, and evidences of debt of the decedent, except the personal property specifically exempted from administration under section 4199 (2072), and to make a full inventory of the same. Oratrix says that the said executors never, at any time, filed an inventory of the estate of the deceased in compliance with said section 2579, and that said Catherine Arata knew this fact before she purchased oratrix’s property, as before related.</p> <p>“(23) Oratrix says further that Catherine Arata, though whom the demurrants, Arata, claim, well knew before she bought said No. 10 North Lawrence street, the property of your oratrix, that the judgment under which the sale was made, was procured to he rendered by the concoction of the executors of the will of the deceased, and she knowingly confederated with them in said concoction. Oratrix says that said Catherine Arata well knew before she bought said lands, that the deceased, at the time of her decease, owned a large amount of personal property, far exceeding in value the alleged indebtedness of the deceased, and said Catherine Arata knew that the executors had failed to file an inventory of said personal property of the said deceased for the purpose of driving the said probate court into granting to them an order to sell oratrix’s said land.</p> <p>“(24) Oratrix says further that said Catherine Arata, through whom the demurrants claim, knowingly conferred with said executors of the deceased to sell said No. 10 North Lawrence street, by agreeing to purchase said No. 10 North Lawrence street, under a judgment of the probate court of Mobile county, Ala., which had been fraudulently procured, to be rendered by said proba-te court, with knowledge on the part of said Catherine Arata that the executors concocted to procure from the said probate court said judgment authorizing the sale of oratrix’s land by fraudulently withholding from the records of the probate court, by failure to file inventory of personal property of the deceased, as required by law, the information that the decedent, at the time of her death, owned a personal estate, in value largely exceeding all the claims against testatrix’s estate. Oratrix says further that said executors-violated the requirements of the law of this state which make it the duty of every executor or administrator, immediately after taking out letters, to collect and take into his possession the goods and chattels, money, books, papers, and evidences of debt of the decedent, except the personal property specifically exempted from administration, and to make a full inventory of the same, which inventory must set forth the goods and chattels, enumerating each article separately, all debts or demands due or accruing to the decedent the time such debts or demands are due, the amount of the same, and hoiv evidenced, with the- credits, if any, and the name of the debtor, and the amount of money, and which also required the said executors, on the return of the inventory, to take and subscribe an oath that such inventory is full and complete, as to the goods and chattels, debts, and money of the decedent, which have come to their knowledge and possession. Oratrix says further that said Catherine Arata, before she purchased oratrix’s said land, knew that said executors had failed to make oath to and file such inventory, and thereby fraudulently deceived said probate court, and induced it to grant said executors a decree authorizing them to fraudulently sell oratrix’s said land to said Catherine Arata. Oratrix says further that Catherine Arata well knew that the probate court, when it rendered said decree, and granted said executors said order to sell oratrix’s real property, had fraudulently violated thg laws of this state for the purpose of defrauding oratrix of. her said land, and that said probate court’s decree of sale of oratrix’s said land was nothing more than an unlawful fraudulent concoction, null and.void in equity.”</p> <p>Fraud is always an active cause for the intervention of a court of equity against the judgment of any court, providing that the party invoking that intervention has not been guilty of laches or is not herself particeps criminis. Wyman v. Campbell, 6 Port. 219, 31 Am. Dec. 677; Waring v. Lewis, 53 Ala. 615; McDonald v. Pearson, 114 Ala. 630, 21 South. 534; Hardeman v. D'onaghey, 170 Ala. 362, 54 South. 172; Hogan v. Scott, 186 Ala. 310, 65 South. 209; De Sota Coal Min. & Dev. Co. v. Hill, 194 Ala. 537, 69 South. 948; Sims v. Riggins, 201 Ala. 99, 77 South. 393; Eskridge v. Brown, 208 Ala. 210, 94 South. 353; Tillman v. Thomas, 87 Ala. 321, 6 South. 151, 13 Am. St. Rep. 42; Alder v. Van Kirk, 114 Ala. 551, 21 South. 490, 62 Am. St. Rep. 133; Freeman on Judgments (2d Ed.) § 489; 2 Story, Eq. Jur. (10th Ed.) § 1575. It is the duty of one about to purchase lands, under decree of sale out of a probate court, to examine the records of that court before buying lands belonging to the estate of a deceased. Lindsay v. Cooper, 94 Ala. 170, 11 South. 325, 16 L. R. A. 813, 33 Am. St. Rep. 105; Tyson v. Brown, 64 Ala. 245; Williamson v. Branch Bank, 7 Ala. 906, 42 Am. Dec. 617; Howell v. Hughes, 16S Ala. 460, 53 South. 105.</p> <p>Fraud cannot be alleged as a mere conclusion of the pleader; the facts constituting it must be alleged, Flewellen v. Crane, 58 Ala. 627; Riles v. Coston Riles Co., 208 Ala. 508, 95 South. 43. Proceedings such as those referred to in the bill are in rem, and jurisdiction attaches when a petition is filed averring the statutory ground for the sale, and recognized by an order or permission of the court to file the same, although the parties in interest are not personally served with process, or otherwise notified of the proceedings. Playnes v. Simpson, 143 Ala. 554, 39 South. 352; Howell v. Hughes, 168 Ala. 461, 53 South. 105. A sale under such proceedings cannot be collaterally attacked in a suit against the bona fide purchaser, on the ground that the plaintiffs did not contest the probate court proceedings, because they did not know their rights were involved. Cobb v. Garner, 105 Ala. 467, 17 South. 47, 53 Am. St. Rep. 136. The fraud that ¡will sustain a collateral attack upon a judgment of'a court having jurisdiction must be in the procurement of a judgment. Eskridge v. Brown, 208 Ala. 210, 94 South. 353; De Sota v. Hill, 194 Ala, 537, 69 South. 948; 9 Mich. Ala. Dig., 127.</p>

A. Pearce, Judge. •Bill in equity by Robert Newman and others against Mollie Martin, to annul the probate of a will. From a decree sustaining demurrer to the bill, complainants appeal. The respondent in writing renounced her right under the will, and the will was inoperative as to her. She could not thereafter probate the will and take thereunder.. 40 Cyc. 1898;' 1 Pom. Eq. Jur.-, 395; Defreese V. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584.

M. Lackey, Judge. Action by G. W. Hodgens against W. R. Clements. From a judgment or order granting plaintiff a new trial, defendant appeals. In view of the decision, it is not necessary that the briefs of respective counsel be here set opt.

-Appeal from Circuit Court, Elmore County; W. M. Lackey, Judge. Condemnation proceeding by the County of Elmore against Frank Stollenwerck and others. From judgment dismissing appeal to the circuit court of certain respondents, they appeal.

S. Williams, Judge. Bill of interpleader by T. S. Davis, doing business under the trade name of Bank of Hurtsboro, against George W. and Minnie McLeod Brown, individually, and A. A. McLeod and others as executors of J. W. McLeod, deceased. From a decree for cross-complainants, George W. Brown and Minnie McLeod Brown, the respondents executors, appeal. The burden is on appellees to show the gift was made. Jackson v. Jackson, 91 Ala. 292, 10 South. 31; 12 R. C. L. 971.

M. Lackey, Judge. Action in ejectment by Mary S. Fitzpatrick, by her next friend, H. T. Fitzpatrick, against Rebecca J. Driver. From a judgment for plaintiff, defendant appeals. In view of the decision, it is unnecessary that briefs of respective counsel bo here set out.

K. McMorris, Judge. Action for damages by Odie Grooms against Chilton County and R. N. Roebuck. From a judgment for plaintiff, defendants appeal. In tort actions, where the recovery is not greater than $20, the plaintiff cannot recover costs greater than the damages, unless the presiding judge certify that the damages should have been greater, and on appeal in such eases the court will render judgment in conformity with the statute.

<p>1. Wilis <&wkey;>439 — Intent and purpose of testator to prevail.</p> <p>The intent and purpose of the testator should prevail, if no statute prohibits it and it is permissible under the common law.</p> <p>2. Executors and administrators <&wkey; 14 — Persons named must be appointed executors if fit.</p> <p>When a will is admitted to probate, the persons named as executors therein, if fit persons to serve as such, must be appointed by the judge of the court, under Code 1907, § 2507.</p> <p>3. Executors and administrators &wkey;>!4— Daughters held to have power to select executor.</p> <p>Where it was clear testators desired administration, either by four brothers, or one of them, or some fit person selected and nominated by two named daughters as long as they lived, the right of the daughters to select an executor did not terminate upon the selection of -one who failed to act and resigned, but continued while the estate remained unadministered and undivided, under Code 1907, § 2507.</p> <p>4. Executors and administrators <&wkey;l38(2)— Executor held empowered to sell and convey all property.</p> <p>A will, requiring executor to keep estate together for 20 years, but also providing for payment of certain amounts in cash on marriage of daughters and otherwise, held to authorize the executor to sell and convey any and all property, real or personal or both, owned by the testatrix at the time of her death.</p> <p><§=>For other cases see same topic and KEI’-NUMBBR In all Key-Numbered Digests and Indexes</p>

<p>Certiorari to the Court of Appeals.</p>

P. Almon, Judge. Petition by the State of Alabama, on the relation of G. F. Potts, for mandamus directed to the Court of County Commissioners of Lauderdale County. Prom a judgment sustaining demurrer to and dismissing the petition,, the petitioner appeals. The election petitioned for in this case is governed by section 5882, and it was necessary that the petition ’.be' by a majority of the freeholders residing in the district.

<p>Appeal from Circuit Court, Chilton County; Geo. F. Smoot, Judge.</p> <p>Bill in equity by I. N. Langston against Laura I-Iyman and. others. Prom rulings on demurrer, both respondents and complainant appeal.</p> <p>Fraud is a conclusion of law from facts stated and proved. When pleaded, the facts out of which it is supposed to arise must be stated. A mere general averment of fraud, without such facts, is not sufficient. 1 Story, 204; Ala. Coal Co. v. Gulf Co., 171 Ala. 552, 54 South. 685; Davis v. Simpson Co., 162 Ala. 429, 50 South. 368; 10 R. C. L. 415; Dennis v. Mobile R. Co., 137 Ala. 649, 35 ■South. 30, 97 Am. St. Rep. 69; S.-S. S. & I. Co., v. Smith, 166 Ala. 448, 52 South. 38; 27 C. J. 30; So. C. O. Co. v. Harris, 175 Ala. 323, 57 South. 854.</p> <p>Equity will grant relief in a case of this character, the remedy at law being inadequate. Johnson v. Ghamblee, 202 Ala. 525, 81 South. 27. A subsequent purchaser of the land, with notice of the fraud, is a proper party. Harwell v. Leham, 72 Ala. 344. The averments of the bill are sufficient. Strickland v. Strickland, 206 Ala. 452, 90 South. 345; Cunninghame v. Herring, 195 Ala. 469, 70 South. 148; Alexander v. Gibson, 176 Ala. 258, 57 South. 760; Grubbs v. Hawkins, 208 Ala. 349, 94 South. 484. Where the object of the suit is single, it is no objection that the defendants have separate interests in distinct and independent questions; provided they are all connected with and arise out of the single object of the suit. Randle v. Boyd, 73 Ala. 282; Bolman v. Lohman, 74 Ala. 507; Russell v. Garrett, 75 Ala. 348; Holt v. Wilson, 75 Ala. 58; Hinds v. Hinds, 80 Ala. 225; Handley v. I-Ieflin, 84 Ala. 600, 4 South. 725; Collins v. Stix, 96 Ala. 338, 11 South. 380; Christian v. ICLing, 121 Ala. 292, 25 South. 629; Howard v. Corey, 126 Ala. 283, 28 South. 682; Adams v. Wilson. 137 Ala. 632, 34 South. 831; Esbridge v. Brown, 208 Ala. 210, 94 South. 354.</p>

Turner, Judge. Action in ejectment by the E. W. Gates Lumber Company against M. Y. Loper. From a judgment for plaintiff, defendant appeals. Plea 2 follows the exact verbiage of the statute, and was erroneously stricken. Acts 1919, p. 365, § 284. Plea 3 efficiently set up the statute of limitations of three years, and was not subject to demurrer. Acts 1919, p. 366, § 287; Code 1907, § 5383 (32).

Action by Derkins B. Carter against the Standard Oil Company, for damages impersonal injuries. From a judgment for plaintiff, defendant appeals. Count 1 of the complaint is as follows: “Count 1. The plaintiff claims of the defendant the sum of $3,000 for injuries received by plaintiff on, to wit, September 29, 1922.

P. Agee, Judge. Suit for unlawful detainer by G. B. Sharp against D. G. Smith. Prom a judgment for plaintiff, defendant appeals.

<p>1. Pleading <&wkey;34(4) — Construed naturally,' though most strongly against pleader.</p> <p>While pleadings are construed most strongly against the pleader, they must be given a natural and common sense construction, as opposed to a strained and unnatural one.</p> <p>2. Highways &wkey;>l84(1)— Simple negligence in operation of truck held sufficiently averred.</p> <p>Counts 'averring that death proximately resulted from the negligent failure of defendant’s servant in charge of a motor truck to exercise reasonable care and diligence to stop it and the unusual noise made in its operation after discovering the fright of decedent’.s horse and his perilous position thereon, sufficiently alleged simple negligence in failing to perform a duty owing to decedent, and injury as a proximate result thereof.</p> <p>3. Negligence <&wkey;l 19(7) — Recovery for subsequent negligence allowable under counts charging simple negligence.</p> <p>Under counts charging simple negligence, recovery may be sustained on proof of subsequent negligence.</p> <p>4. Appeal and error <&wkey;l040(ll) — Overruling demurrers to counts charging subsequent negligence held not injurious to defendant, in view of counts charging simple negligence.</p> <p>Overruling demurrers to counts averring negligence in failing to stop a motor truck and the unusual noise thereof after discovering decedent's perilous position on a frightened horse, held not injurious to defendant, in view of other counts charging simple negligence in the operation, management, and control of the truck.</p> <p>5. Death <§=54 — Special pleas of contributory negligence held insufficient.</p> <p>Special pleas of contributory negligence, in failing to procure a skilled physician to treat decedent for a disease, ¡held insufficient on demurrer, as setting up negligence subsequent to his injury, and relating to proximate cause, which was provable under the general issue.</p> <p>6. Highways <&wkey;!84(l) — Allegations of negligence in frightening horse held not at variance with proof.</p> <p>Allegations that defendant’s agent, while operating defendant’s auto truck, negligently caused a horse on which plaintiff’s intestate was riding to run away and throw him to the ground, charged simple negligence in the operation, management, and,eontrol of the truck, and hence were not at variance with the evidence supporting recovery on proof of subsequent negligence.</p> <p>7. Highways <&wkey;l79 — One stopping horse near public road held “traveler” thereon.</p> <p>That one thrown from a horse frightened by a motor truck had stopped the horse near the road to converse with a friend did not prevent him from being a traveler on the public highway within counts alleging his status as such.</p> <p><§r=pI’or other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p> <p>8. Highways &wkey;>l84(l) — Descriptive averment that decedent was traveler on public highway when horse was frightened held not at variance with proof that it was standing near road.</p> <p>, An averment, in a death action, that decedent was a traveler on a public highway when his horse was frightened by defendant’s motor truck, Iheld merely descriptive and hence not a material variance from proof that the horse was standing at a gate near the road; defendant’s duty being the same as respects proof of negligence after discovering decedent’s peril.</p> <p>9. Pleading <&wkey;430 (2) — Variance between pleading and proof cannot be first raised by request for affirmative charge.</p> <p>Variance between allegation and proof, when not directed to the trial court’s attention, as required by circuit court rule 34 (175 Ala. xxi), cannot be raised for the first time by request for the affirmative charge.</p> <p>10. Highways &wkey;>!84(4) — Charge asked on erroneous theory as to negligence for which recovery was sought in case of horse frightened by truck held misleading.</p> <p>In an action for, the death of one thrown from a horse, frightened by defendant’s motor truck, a charge, asked on- the erroneous theory that certain counts sought recovery only for negligence in the initial fright of the horse, that the noise of the car before the driver’s discovei-y of deceased’s perilous situation was not sufficient to fix defendant’s liability, held properly refused as misleading.</p> <p>11. Trial <&wkey;>260(l) — Refusal of charge substantially covered by charges given not error.</p> <p>Refusal of a charge substantially covered by charges given is not error.</p> <p>(g^jFor otiler cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes</p>