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REPORTS
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CASES ARGUED AND DETERMINED
IN THE
SUPREME COURT OF ALABAMA,
During parts of June Term 1848, and January Term, 1849.
VOLUME XV.
J. J. ORMOND, REPORTER.
TUSCALOOSA:
PRINTED BY M. D. J. SLAD&.
1849.
-
.15
Entered according to act of Congress, in the year J849,
BY J. J. ORHOND,
In the Clerk's Office of the District Court of the United States for the
Middle District of Alabama.
THE SUPREME COURT,
DURING THE TIME OF THESE DECISIONS.
HENRY W. COLLIER, CHIEF JUSTICE.
EDWARD S. DARGAN, > AssocIATE JusTICES
WILLIAM P. CHILTON, \ Ass )CIATE Ju
M. A. BALDWIN, ATTORNEY GENERAL.
GEORGE C. BALL, CLERK.
TABLE OF CONTENTS.
Abcrcrombie v Baldwin, 363
Abercrombie & Thompson and
Jordan { 580
Adams and Hamilton 596
Allen & Watkins v. State Bank... 788
Andrews' admrs v. Hall, 85
Apperson and Slaton 721
Ashley and Hopper, adm'r, 457
Ashley's dis. v. Ashley's heirs, 15
Arthur and Corprew, 525
Averett v. Thompson 67
Baldwin and Abercrombie, 36c
Bancroft v. Paine
Bank Branch at Mobile v Strother 51
' ' ' Montgomery v. I
Broughton <J- Duprey $ 12'
' at Montgomery and Bussy 21(
* at Montgomery and Hooks 60J
4 at Montgomery and Hardy 725
4 at Decatur and Martin . . 58'
Bank of the State and Evans, 81
Barclay and Potier and McCoy 43J
Barnett v. The State 829 Ellis v. Ellis's adm'r
Battle and Gillespie 276 England and Patton
Benford v. Gibson ..521" '
Bird and Shields 81 8 Evans v. The State Bank
Bishop's heirs v. Hampton 76^
Blackstone v. The State 415
Bloodgood, Ford et al and Cullum 3'
Bondurant, adm'r v. Thompson . . 202
Bondurant & King and Thompson 34
Boyd v. Gilchrist 84 l
Bradford and Bush..., ,. 31
!abiness, assignee, and Snodgrass, 160
lameron v. The State 383
larter v. Darby 696
larlisle v. Hunley 623
'handler and Graham v- Taylor ad. 342
'handler and McGehee 659
Ihenault v. Walker 605
Jhilton v. Parks 671
Jlifton v. Sharp 618
Jogburn& Powell v Spence&Elliott549
Jorprew v. Arthur 525
'rabb v. Pratt and wife 843
'raig and Sorrell 789
Crawford and McMorris 271
Jroft v. Terrell 652
Brothers v. Ross's dis 800
/ulllum v. Bloodgood. Ford et al. 34
Darby and Carter 696
Dean and wife v. Rathbone's admr 328
Dent v. Smith 286
Denton and Thomas 583
of the State v Goden Lowry 616 Dolinv Gardner 758
of the State and Allen & > Donald & Marshall and Tunstall. 841
Watkins $ 788 Draine and Smelser v- Henderson 423
Barclay and Fenn & Dulany 626 Dunn and Nelson v, Hatch 501
Edwards and Allen and Garey 105
296
69
Esselman and Turner and wife... . . . 690
81
Fagan, adm'r v. Pagan's dis 335
Falkner v . Leith and Jones 9
Felder and Geron 304
Foster v. Mitchell 571
Finn & Dulany v. Barclay 626
Fulfordv. Johnson, Hendon& Co. 385
Fry v. Merchants' Insurance Com. 810
Bradford and Gilbert 769 Garey e tal. v. Edwards & Allen... 105
Bradford v. Goldsborough SllGant and Marshall 682
Briggsand Moore 24Gardnerand Dolin 758
Bright &. Ledyard v. Young 112Geronv. Felder 304
Broughton & Dupruy and Branch ) Gcron v. Geron 558
Bank at Montgomery $ 127 Gilchrist and Boyd 849
Brownings and Leca 495 Gibson and Benford 521
Brown v. Turner 832 Gibson and Summerlin, adm'r 40C
Burke <fe Nicolson 353'Gilbert v. Bradford 769
Burwell &, Clarke v. Springfield... 273 Gilleupie v. Battle 276
Burwell and Orr 378Givennv. Kendrick 648
Bush v. Bradford 317Godden& Lowry and State Bank 616
Br. Bank at Montgomery 216Go!d!boroiih and Bradford 31 1
TABLE OF CONTENTS.
at Montgomery 609 Morgan
Goodwin v. McGehee 232
Gordon and Governor, use, J-o 72
Goree and Lyon 360
Governor, use, &c. v. Gordon 72
" v. Jackson
Graham v. King 563
Graham v. Tankereley 634
Graham and Taylor, ad. v. Chandler "
Gray v. Gray
Hair and Howell 194
Hall and Andrews, adm'r
Hall v. The State 431
Hamilton v. Adams 596
Hampton and Bishop's heirs 761
Hardy v. Br. Bank at Montgomery 722
Hart v. Smith "
Hart v.Turk
Harwood and McKeen & Bro
Haskins and Nicklcs
Hayden v. Ware
Hayter, Johnson & Co. and Patton 18
Hazzard v. Shelton
Hinkle and Williams, judge,
Hooks v. Br. Bank
Hopper, adm'r v. Ashley 457
Howie, use, &c. v. Royston, adm'r
Howell v. Hair
Hughes, adm'r and Mead 141
Hughes v. Stringfellow
Hunley, et al. v. Hunley 91
Hunleyand Carlisle
Hurst &. Ship v. Weathers
Jackson and The Governor
John and Scott
John, adm-'r and Tripp, ex'r
Johnson, Hendon & Co. v. Fulford
Jones and Abernathy v . Welch
Jones and Lowe's adm'r
Jones v. Powell
Jordan v Abercrombie $ Thorn
Jordan v. The State
Judge of Macon O. C. and State...
Judge of Shelby co. and Yarbrough
Kendrick and Givens
Kelly v. Smith
Key, adm'r v. Vaughn and wife ... 497
King and Ansley v Smith & Steele
King and Graham 563
King and Mock
Knox and Little
Lees v. Brownings
Leith and Jones an d Falkner 9
Lenoir vRainey ..
Lindsay and Atkinson v . The State
Linch v. MeLemore
Little v. Knox ,
Lodano and Twelves <f Co
Lowe's adm'r v. Jones
Lyon v. Goree
Machen v. Machen
Mahone and Nuckols
Marshall v. Gant...
Martin v. Br. Bank at Decatur .... 587
May v. May 177
McGehee v. Walke 183
McGehee and Goodwin 232
703 McGehee v. Chandler 659
McGuire, adm'r v. Miller 394
McKeen and Bro. v. Harwood 792
342 MeKinnish and wife and Scott 662
779 MeLemore and Linch 632
McMorris and Crawford 271
85 Mead v. Hughes, adm'r 141
Melton v. Troutman 535
Merchants' Insurance Co. and Fry, 810
Merriman and Thompson 166
Merriweather, adm'r, v Taylor 735
807 Mitchell v Robertson 412
675 Merrill & Eximer and Pollard 169
792 Miller and McGuire, adm'r 394
619 Mitchell and Foster 571
149 Mobile and C. P. R. R. v. Tals- )
man and Ralstons } 472
62 Mock v. King 66
713 Moore v. Briggs 24
v.Ramsey 190
Morrow v. Riley 710
309 Nabors v. Shippey 293
194 Nelson & Hatch v. Dunn 501
Nickles v. Haskins 61 9
324 Nicolson v. Burke 353
Norris, Stodder & Co. and Stephens 79
623 Norsworthy and Upcburch 705
41 7 Nuckols v. Mahone 212
703 Nuckols and Stewart 225
566 Orr v. Burwell 378
117 Paine aud Bancroft 834
385 Parkman & Weaver and Tate 253
306 Parks and Chilton 671
545 Patterson v. Powell 205
824 Patton v. England 69
v. Hayter, Johnson & Co. 18
746 Pearson & Fant v. Thomaaon 700
740 Pollard et al. v. Merrill & Eximer 169
536 Pool v. Reid 826
648 Powe and Smith admrs v Tyson's ex 221
687 Powell and Patterson 205
Powell and Strange 452
264 Powell v. Washington & Brock. . . 803
Powell and Jones 824
66 Potier & McCoy v Barclay and bus. 439
576 Pratt and wife and Crabb 843
495 Rainey and Lenoir 667
9 Ramsey and Morgan 190
667 Rathbone's adm'r and Dean & wife 328
43 Reid and Pool 826
632 Reynolds v. Reynolds 398
576 RUey and Morrow 7W
732 Roads and rev. com. of v Thompson 134
545 Robertson and Mitchell 4!2
360 Ross's dis. Crothers 81
373 Royston adm'r v. Howie, use, &c. 309
212 Ruddle and Smith 28
682 Scott v. John 566
pson 580 Patton
TABLE OF CONTENTS.
Scott v. McKinnish and wife
Sharpe and Clifton
Shelton and Hazzard
Shields v. Bird
Shippey and Nabors]
Slaton v. Appcrson
Smith v. Ruddle
Smith and Dent
Smith and Kelly
Smith and Hart
Smith" <J- Steele and King & Ansley
Smelser and Henderson and Draine
Snodgrassv. Cabincss, assignee,...
Sorrell v. Craig, adm'r
Spence & Elliott and Cogburn & )
Powell S
Springfield and Burwell $ Clarke
State and Lindsay and Atkinson...
and Cameron
and Williams '
and Blackstone
and Hall
and Barnett
and Jordan
and Tharp
. ex rel. Judge O. C. of Macon
State v. Stephen
Stephens v. Norris, Stodder & Co.
Stewart v. Nuckols
Stewart and Whitlock
Strange v. Powell
Stringfellow and Hughes
>S trot her and Br. B. at Mobile
Summ< rlin, adm'r v. Gibson
Talman & Ralstons and Mobile )
&C. P.R.R $
Tankersley and Graham
Tanner v White
Tate v. Parkraan &, Weaver
662 1 Taylor and Merri weather, adm'r... 735
"Terrell and Croft 652
Tharp v. The State 746
Thomas v. Denton 583
Thompson and Averett 678
Thomason and Pearson & Fant ... 700
Thompson v. Bondurant and King 346
Thompson and Com. of R. and R. 134
Thompson v. Merriman 166
Thompson's dis. v. Bondurant 202
Toddv. Todd 743
Trippe, ex'r v. John, adm'r 117
Troutman and Melton 535
Tunstall v Donald & Marshall 841
Turk and Hart .. ..675
618
62
818
293
721
28
286
687
807
264
423
160
789
549
273
43
383
259
415
431
829
746
749
740
534
79
225
601
45!
324
51
406
472
634
798
253
Turner and wife v. Esselman
690
Turner and Brown 832
Twelves & Co. and Lodano 732
Tyson's ex'rs v. Powe & Smith ad. 221
University v Walden 655
Upchurch v. Norsworthy 705
Vaughn and wife and Key 497
Walden and University 655
Walke and McGehee 183
Walker and Chenauft 605
Ware and Hayden 149
Washington & Brock and Powell 803
Weathers and Hurst & Ship 417
Weaver v. Yeatmans 539
Welch and Jones & Abernathy 306
White and Tanner 798
White v. Wood 358
Whitlock v. Stewart 601
Williams v- The State 259
Williams, judge, v Hinkle -... 713
Wood and White .T... 358
Yarbrough v. Judge Co. Co. Shelby 556
Yeatmans and Weaver 539
Young et al. and Bright $ Led yard 112
CASES
ARGUED AND DETERMINED,
JUNE TERM, 1848,
FALKNER v. LEITH & JONES.
1. Land acquired by entry, and for which a receipt of full payment has been
executed by the register, vests such title in the person to whom it is giv-
en, as may be sold under execution at law.
2. Neither the acts, or declarations of a debtor subsequent to the institution
of a suit against him, to recover a tract of land sold under execution, can
be given in evidence against the creditor.
3. A recital in an assignment of a land certificate, that it was transferred
for a valuable consideration, is not evidence against one, who was a cre-
ditor of the assignor, at the time. The burthen of proving the considera-
tion is cast upon the grantee.
4. In a suit against two, the admissions of one defendant are competent tes-
mony. if the co-defendant desires to avoid the effect which such admis-
sions may have upon him, he should ask a charge of the court.
Error to the Circuit Court of Cherokee. Before the Hon.
G. D. Shortridge.
TRESPASS to try title to a tract of land, by the plaintiff a-
gainst the defendant in error.
From a bill of exceptions it appears, that the plaintiff was
a purchaser of the land in controversy, at sheriff's sale, under
Vol. 152
10 ALABAMA.
Falkner v. Leith & Jones.
execution against James Leith, one of the defendants in er-
ror, which was conveyed to him by the sheriff.
The defendants produced the certificate of the receiver of
the land office, acknowledging the receipt from the said James
Leith, of the purchase money of the tract sued for, on the
back of which was the following transfer : " For value re-
ceived, I assign the within certificate to Moses Jones, and
hereby authorize the patent to the within described land to
issue in his name. Witness my hand and seal this 4th day
of October, 1842. James Leith, (seal.)" This transfer was
made before the register, and certified by him on the certifi-
cate of the receiver. The defendants also proved, that since
the commencement of the suit, one Baker, had rented the
land from one John Leith, who said at the time he was acting
for Jones, the defendant. This was admitted against the
objection of the plaintiff, and he excepted. It was proved
there was no change in the possession of the land, from 1835
or 1836, until six months after the commencement of this
suit, when Leith, one of the defendants, moved to Jackson
county, where Jones, the other defendant resided. The
plaintiff also proved, that a few days after the judgment on
which the land was sold, was rendered, Leith told witness,
that it was unjust and he never intended to pay it. That he
had sold, or conveyed the land to Jones ; that it could not be
sold to satisfy the judgment, and that he had made an ar-
rangement with Jones about it. Plaintiff offered to prove,
by the same witness, that Leith at the same time wanted to
convey his other property to witness, to prevent its being sold
to satisfy the judgment. On defendant's objection this was
excluded, and plaintiff excepted.
The court charged the jury, that the assignment of the re-
ceiver's certificate, was in the nature of a deed, and of itself
imported a consideration, as against a subsequent purchaser,
or creditor, who had assailed it for fraud. That Leith re-
maining in possession of the land, for a long time after the
transfer to Jones, was not of itself sufficient to create a pre-
sumption of fraud, but might become evidence of fraud, when
taken in connection with the other circumstances tending to
show fraud.
The plaintiff moved the court to charge, that if Leith was
JUNE TERM, 1848. U
Falkner v.Leith & Jones.
indebted to the plaintiff when the assignment was made,
which was only seven days before the rendition of the judg-
ment, that Leith had remained in possession of the land un-
til six months after the commencement of this suit, and that
Jones and Leith were brothers-in-law that these circum-
stances raised a presumption of fraud in the assignment, un-
til the defendant proved that a valuable and sufficient con-
sideration was paid by Jones. This the court refused to give,
and the plaintiff excepted, as well to the charges given, as
to those refused, and here assigns these matters as error.
A. J. WALKER, for plaintiff in error.
Leith's declarations, after the assignment of the receiver's
certificate to his co-defendant, Jones, were competent evi-
dence 1. Because the retention of the possession of the
land by the vendor, strengthened by the other facts in the
case, created the presumption of a combination to defraud,
and rendered the declarations of the vendor evidence against
the vendee. Goodgame v. Cole & Co. 12 Ala. 77 ; Abney
v. Kingsland & Co. 10 Ala. 355 j Borland v. Mayo, 8 Ala.
104.
2. Because Leith was a party to the record, (the original
defendant,) and his own declarations were evidence against
himself at least. Palmer v. Severance & Stewart, 9 Ala. 75.
The authorities all show, that a deed is not of itself evi-
dence of a consideration when assailed for fraud by third
persons, and not by the parties to it. McCaskle v. Amarine,
12 Ala. 17; 3 Philips on Ev. 1448, note 969; McCain v.
Wood, 4 Ala. 258 ; Branch Bank at Decatur v. Kinsey, 5
Ala. 9.
The long continued retention of possession of the land
created a presumption of fraud, or was in other words a badge
of fraud. Clay's Dig. 254, 2 ; P. & M. Bank of Mobile v.
Borland, 5 Ala. 546; Blocker, adm'r, v. Burress, 2 Ala. 354.
The recital of the assignment on the receiver's certificate,
that it was made for value received, could not be evidence
against any person except the parties to the same. Branch
Bank at Decatur v. Kinsey, supra; McCain v. Wood, supra.
The admissibility of a recital in a deed depends on the same
principle, as the admissibility of the declararions of the grant-
12 ALABAMA.
Falkner v. Leith & Jones.
or. Leith's declaration that he had received " value" for
making the assignment could not be evidence 'against plain-
tiff in this cause, and certainly not evidence of a considera-
tion. 3 Phil, on Ev. 1236 ; Berry, use, &c. v. Hardman, 12
Ala. 604.
It is certain that the indebtedness of Leith to Falkner, the
short time that elapsed between the date of the assignment,
and the judgment, the relationship of the parties, and the
long continued possession of the land by Leith, and the
small amount of Leith's property left, after the assignment
to Jones of his land, created a suspicion of the fairness of
the transaction, and a presumption of fraud, and devolves
upon the vendee, or assignee, to show that the arrangement
was made for a valuable consideration, and with honest mo-
tives. McCaskle v. Amarine, 12 Ala. 18 ; Goodgame v. Cole
&. Co. Ib. 77, and cases above cited.
L. E. PARSONS, contra.
1. This case has been here before, and the court say, " we
think the law is, that the assignment of the land office cer-
tificate, by a valid instrument, will prevent the title of the
land from passing to a subsequent purchaser at sheriff's sale."
Falkner v. Jones and Leith, 12 Ala. 172. The certificate
does not vest a title in the holder, which is subject to sale
under judgment at law. Our statute makes it a "full, com-
plete and legal title, so far as to enable the holder of such
certificate to maintain any action thereon." Dig. 341,
157. This leaves the liability of the land to sale at law as
it was before the passage of the act. The certificate is only
evidence to show who has the right to a legal title. But for
the statute, the holder could not sustain ejectment or any
other action.
2. The admission of what John Leith said, when he was
renting the land, is a part of the transaction, and proper to
go to the jury.
3. It has been decided, over and over, that such a seal does
import a consideration. The plaintiff says he assails this
deed for fraud ; but he proves none. It is contended there-
fore, that prima facie this deed is good until they have shown
something more than the facts disclosed by this record.
JUNE TERM, 1848. 13
Falkner v. Leith & Jones.
Whitney v. Stearns, 4 Shipley, 394; Sloan v. Gibson, 4
Missouri, 33 ; Chitty on Con. 27.
CHILTON, J. I. It cannot be considered as an open
question in this court, whether land acquired by entry, and
for which a receipt of full payment, certifying the entry, has
been executed by the register, vests such title in the person
to whom it is given, as is subject to be sold under execution
at law. This precise point was decided in Goodlett v. Smith-
son, 5 Porter's Rep. 254, which was recognized as settling
the rule correctly in Rosser v. Bradford, 9 Porter, 345, and
also in the decision upon this case when heard previously,
12 Ala. Rep. 170. The rule has become too firmly settled
by judicial decision now to be departed from, however much
I might be disposed, were the question res Integra, to a dif-
ferent conclusion.
2. It is very clear, that neither the acts nor the accompa-
nying declarations of Leith, the defendant, which occurred
subsequent to the institution of this suit against him, as the
same were allowed to be proved in this cause, are admissi-
ble, for if such proof were allowed, there would be no end to
the expedients to which men might resort, to fabricate testi-
mony, so as to meet the various exigencies of their defence.
We might here close, but other points are presented which
may again arise upon another trial, and therefore require a
decision.
The same reasoning is equally applicable to the ques-
tion of consideration, as evidenced by the recital in the trans-
fer of the receipt by Leith to Jones. This transfer was made
after the debt was due to the plaintiff under wKich the land
was sold, and only seven days before it was reduced to judg-
ment. And Leith remained in the possession of the land
which he had thus transferred to Jones, his kinsman. Now
we think it very clear, that under the circumstances of this
case, it was incumbent on the defendants, in order to defeat
the right of the creditor, to show the consideration of the
sale. If the bare recital proves the consideration, then a
debtor seeking to screen his property from the payment of
his debts, may by a dash of the pen insert in his fraudulent
transfer, "for value received," and set his creditors at defi-
14 ALABAMA.
Falkner v. Leith &. Jones.
ance. Such transactions are most usually unattested by
witnes&s, and iti most cases, the creditor would find it im-
possible to prove a negative that the payment was not made,
whereas the honest purchaser would rarely fail for want of
proof. Upon principle, therefore, it would seem the proof
of consideration should be made by the party holding the
affirmative. The point however is well settled upon autho-
rity. In McCain v. Wood, 4 Ala. Rep. 258, it was held,
that when the contest is between the creditor and the
grantee, in a trust deed lo secure another creditor, the
consideration of the deed must be shown, and is not proved
by the recitals in the deed, or by the admissions of the grant-
or at the time of its execution. So in the Branch Bank at
Decatur v. Kinsey, 5 Ala. 9, it was held, that as a voluntary
conveyance was void as against creditors of the grantor, it
was necessary, that the person claiming under such convey-
ance, should prove the consideration in a controversy be-
tween him and the creditor. Also, that in such case, the
recital in the conveyance is no evidence of consideration, as
it is no more than the admission of the grantor, but the fact
must be proved by extrinsic evidence. See also, McCaskle
v. Amarine, 12 Ala. 24.
As to the admissions of Leith, which were rejected by the
circuit court, and which were offered to be proved against
him, they should have been allowed. They are evidence
against him, and if the defendant, Jones, desired to avoid
any effect which he supposed such admissions of his co-de-
fendant might have upon him, a charge should have been
asked of the court. Palmer v. Severance, et al. 9 Ala. Rep.
751.
These views will be a sufficient guide for the final dispo-
sal of the case in the court below.
Let the judgment be reversed and the cause remanded.
JUNE TERM, 1848. 15
Ashley's Dis. v. Ashley's Adra'r.
ASHLEY'S DIS. v. ASHLEY'S ADM'R.
1. An order, or decree, of the orphans' court, accepting the resignation of an
administrator, and directing him "to pay over to his successor, when known,
the sum of $2696 84, being the amount due from him to said estate," is not
such a final decree, as will protect the adminisrator against a citation for a
a final settlement of the estate, by the distributees of the estate, although he
had paid over to his successor, the sum ascertained by the previous decree,
to be due from him.
Error to the Orphans' Court of Montgomery. Before the
Hon. Adam C. Felder.
The facts appear in the opinion of the court.
MAYS, for the plaintiff in error. ,
BELSER & HARRIS, contra.
1. It is admitted, that by our decisions, the annual returns of
an administrator may be corrected on a final settlement of the
estate, and such a decree be rendered, as will be proper upon a
view of all the facts. Willis's adm'r v. Willis's heirs, 9 Ala. 335;
Brazeal's adm'r v. Brazeal's dis. ib. 496; Cunningham v. Pool,
etal.ib. 620; Smith's heirs v. Smith's adm'r, 13 ib. 329. But
where items have been passed on, by the orphans' court,
sech an adjudication of them, is at least, primafade proof of
their correctness, in favor of the administrator. Mills's adm'r
v. Mills's heirs, &c., at this term ; Allen v. Hubbard, 8 New
Hamp. 487 ; Loring, adm'r v. Sternman, et al. 1 Metcalf 207,
208 ; McCall v. Peachy, adm'r 3 Munf. 288 ; and such items
ought not to be received, unless by a court of equity, or on a
petition filed for the purpose, setting forth fraud or mistake:
and the application should be made within a reasonable time.
Burton and wife v. Dick, et al. 3 Yerger, 112 ; Bunting's ap-
peal, 4 Ser. & Watts, 460 ; Stetson v. Bass, 9 Pick 26 ; Tay-
lor v. Benham, 5 Howard U. S. 223 ; Crombe v. Engle, 4
Harr. 83 ; Dement et al. v. adm'r of Burgess, 13 Ala. 140.
2. The citation in this instance, was properly 4/scharged.
The administrator, in 1839, made a final settlement with the
16 ALABAMA.
Ashley's Dis' v. Ashley's Adm'r
court, resigned his trust, and vas ordered to pay over to his
successor, which order has been fully complied with. He
is not in default, in any manner. Leland v. Kingsbury, 24
Pick. 317; Skinner v. Frierson, 8 Ala. 915 ; Gayle v. Elliot,
10 Ala. 265 j Watson and wife v. May, 8 ib. 177.
DARGAN, J. On the 4th of January, 1837, William
Ashley was appointed administrator of the estate of James
Ashley, deceased, by the orphans' court of Montgomery. He
returned an inventory of the estate, and account of sales]: he
also petitioned the court, that commissioners be appointed to
divide the estate, amongst the children, and widow of the dece-
dent, and commissioner's were appointed by the order of the
court. On the first of November, he filed his accounts in the
orphans' court, which showed, that he had in his hands,
twenty six hundred and ninety six dollars eighty four cents.
He then tendered his resignation as administrator, which was
accepted, and an order was then made, that he be no longer
administrator of said estate, and that he pay over to his suc-
cessor, when known, the sum of twenty six hundred and
ninety six dollars eighty four cents, being the amount due
from him to said estate. On the 24th of July, 1848, a cita-
tion was issued to him, at the instance of the distributees, re-
quiring him to appear, and make a final settlement of his ad-
ministration.
The administrator appeared, and objected to entering into
an examination of his accounts, or making any further set-
tlement, alledging, that a final settlement of his administra-
tion had been previously made, and he discharged from the
administration by the previous order and decree of the or-
phans' court ; and relied upon the orders referred to, and in-
troduced proof to show, that he had delivered over to the
distributees, their respective shares, and had paid to his suc-
cessor in office, Felix Ashley, who was appointed adminis-
trator de bcnis non, the sum ascertained to be due, from him
to the estate, in his settlement made Nov. 1839. The or-
phans' court upon the production of these orders, and this
proof, dismissed the application for final settlement, on the
JUNE TERM, 1848. IT
Ashley's Dis. v. Ashley's AdmV.
ground that the defendant had made a final settlement of his
administration, and refused to proceed further with the ex-
amination of the cause.
A final settlement^of a decedent's estate, whether it be had
at the instance of the administrator, or of the distributees, is
a judgment, or decree of the orphans' court, definitely ascer-
taining, and settling, the rights of all parties interrested in it.
The material requisites therefore, of a final settlement are,
first, that there be parties to it, whose rights are bound there-
by; secondly, that those rights should be judicially ascer-
tained, and established by the judgment of the court. Tried
by these requisite, the orders of the orphans' court relied
on, as showing a final settlement, or decree, possess not one
quality of a final settlement. Who were the parties to it ? Are
their rights ascertained by it ? The record of the orphans'
court does not inform us. It is true, that the administrator
was ordered to pay over to his successor in office, the sum as-
certained to be in his hands, when such successor should be
known ; but this is no judgment, or decree, for it is not ren-
dered in favor of any one ; such a judgment, if it was even
intended as such, by the orphans' court, would be void. 11
Ala. Rep. 740 ; 5 ib. 280.
The orphans' court therefore, erred, in dismissing the ap-
plication, and in refusing to require the defendant to make a
final settlement of his administration, and for this error the
cause must be reversed and remanded. As the orphans court
dismissed the application for final settlnment, for the reason
that one had been prematurely made, we can only review
this act. To what extent the defendant may be liable, or
what will be proper evidence to charge, or discharge him, we
can intimate no opinion ; we only say, that the records of the
orphans' court do not show a final settlement, and the distri-
butees have no right to call the defendant before the orphans'
court to make one.
The decree of the orphans' court is reversed, and the cause
remanded-
18 ALABAMA.
Patten v. Hayter, Johnson & Co.
PATTON v. HAYTER, JOHNSON & CO.
1. If a senior judgment creditor instructs the sheriff to hold up the execu-
tion issued thereon, it is fraudulent in law, as against subsequent judgment
creditors, and will postpone the lien of his judgment on the real estate of
the debtor in favor of junior judgments, upon which executions have issu-
{F ed, and been served, before a second execution is sued out on the elder
judgment
2. A bill of exceptions is to be taken most strongly against the party except-
ing, and all reasonable presumptions will be indulged by an appellate
court in favor of the judgment of a subordinate tribunal.
3. If an alternative state of facts is presented for the determination of the
primary court, one of which will sustain, and the other reverse its judg-
ment, it devolves upon the party against whom its decision has been made to
negative, in his bill of exceptions, either by positive statement, or by a
recital of all the evidence, the alternative which supports the judgment.
Error to the Circuit Court of Madison. Before the Hon.
G. D. Shortridge.
IN this case, a motion was made to the court for an order
to the sheriff, as to the application of a sum of money in his
hands, raised from a sale of the real estate of one Fredrick
Elgin; against whom the plaintiff and defendants had seve-
rally obtained judgments and executions. It appears by the
bill of exceptions found in the record, that the plaintiff in er-
ror, on the 26th April, 1841, obtained a judgment by confes-
sion against said Elgin, with a stay of execution for six
months ; that execution issued on said judgment, and was
delivered to the sheriff of Madison county, on the 17th day
of November, 1841 ; that said execution has never been re-
turned to the court whence it issued, but has been held up
by said plaintiff in error, or is still in the sheriff's hands ; that
at the time said execution was delivered to the sheriff, said
Elgin was perfectly solvent, having in his possession a con-
siderable amount of real and personal property ; that on the
JUNE TERM, 1848. 19
Patton v. Hayter, Johnson & Co.
day of June, 1844, the defendants in error obtained a
judgment against said Elgin, in the county court of Madison,
for $66 36, besides costs, and on the day of June, 1845,
they recovered judgment against him in the same court for
$185 46, besides costs ; that executions were regularly is-
sued on each of the judgments, in favor of the defendants in
error, and returned " no property;" that on the 21st Septem-
ber, 1847, executions were again issued on each of de-
fendants' judgments, and levied on certain real estate, as the
property of said Elgin ; that on the 29th November, 1847,
afrer said property had been advertised for sale by virtue of
said levy, the plaintiff in error caused an execution to be is-
sued on his said judgment, and on the sale of the property
claimed the proceeds thereof. The court, on this state of
facts, direct the sheriff to apply the money, first, to the pay-
ment of the executions in favor of defendants, and if any re-
mained, to apply it to the execution in favor of the plaintiff
in error. To this direction of the court the plaintiff in error
excepted, and now assigns it as error.
J. ROBINSON, for plaintiff in error.
The property of defendant sold by the sheriff was land.
Patton's judgment was the oldest. His execution was issued
and levied upon the property before it was sold under the
junior judgment. The sheriff should have been directed to
pay over the proceeds to Patton. Turner v. Lawrence, 11
Ala. 430.
There is nothing in the proof tending to show that Pat-
ton's judgment was dormant, or his delay fraudulent.
ORMOND, contra.
The judgment was obtained by Patton by confession, from
Elgin, in 1841, and execution issued thereon during the
same year, and the bill of exceptions states, that the execu-
tion has never been returned, or has been held up by order
of the plaintiff. Conceding that the true interpretation of
the bill of exception is, that Patton caused another execu-
tion to be issued in 1847, and placed in the sheriff's hands,
this was not done until the levy of the defendant on Elgin's
20 ALABAMA.
Patton v. Hayter, Johnson &. Co.
land, and its advertisement for sale. Under these circum-
stances, I contend, first, that the execution of Patton had be-
come dormant by his laches, whilst the defendant is a vigi-
lant creditor, who has re-issued his execution without the
lapse of a term, and is therefore entitled to a preference with-
in the very terms of the decision relied upon on the other
side from 11 Ala. 430.
Second, that as Patton's judgment was obtained by con-
fession, it is as against a judgment creditor, obtained in the
ordinary mode, to be considered fraudulent until the conside-
ration is proved. Roberts on F. Con. 489, and cases cited.
COLLIER, C. J. By an act passed in 1835, it is enacted,
that when any execution shall have been issued on any judg-
ment, &c., within a year and a day after the rendition of
such judgment, &c., which shall not have been returned sat-
isfied in full, it shall be lawful at anytime thereafter to issue
execution thereon, without suing out a scire facias, or any
process to revive the same. Further, when an execution
shall have been sued out on any judgment, &c., within a
year and a day from the rendition thereof, and not returned
satisfied in full, such judgment, &c., shall not afterwards be
presumed to be paid or satisfied, unless payment or satisfac-
tion be entered on the record of the court in which the same
shall have been rendered, &c., or unless no execution shall
have issued for the space often years. Clay's Dig. 206, 28.
The terms of this statute are too explicit to leave room for
controversy. So far from requiring the execution issued
within a year and a day to be returned "no property found,"
or other equivalent return to be made, it is expressly declared,
that the fact of satisfaction must be affirmed by the return ;
and if the execution thus sued out is not returned satisfied
in full, it is competent to issue another, any time within ten
years. It may then be conceded, that as the time prescribed
by the statute had not elapsed between the issuing of the
first and second execution of the plaintiff in error, the latter
was regularly sued out.
Upon this hypothesis, the question arises, whether the se-
cond execution derived any additional potency from the first,
so as to continue the lien of the judgment from the period of
JUNE TERM, 1848. 21
Pattern v. Haytor, Jolmson & Co.
its rendition. It has been repeatedly held, by this and other
courts, that if an execution is delayed by the act of the plain-
tiff, it never acquires a lien upon the goods of the debtor, as
against one of a junior date ; or if it does, the lien is gone as
soon as the interference of the plaintiff commences, and will
only become operative from the time the sheriff is required
to execute its mandate. See Wood v. Gary et al. 5 Ala. R.
43. In the opinion delivered by myself in that case, it is
said, "the process is mandatory, and requires the officer to
make a sum of money of the goods and chattels, &c. of the
defendant, and have the money at a term therein designated,
to render to the plaintiff, together with the writ, &c.; if the
course of law is arrested by the direction or approval of the
plaintiff, during all that time nothing is done towards en-
forcing the payment of the judgment, and the effect in point
of fact, is the same as if no execution had issued. The le-
gal presumption is, that the plaintiff intended to favor the
defendant by suing out his execution ; while he would ob-
tain a lien prior to others, he would, under its protection, se-
cure to the defendant the enjoyment of his property against
subsequent executions. No matter how humane and bene-
volent the motives which might prompt to such a course,
they would not relieve the elder execution from being fraud-
ulent in law." An execution which is fraudulent as respects
those subsequently issuing, is void, and inoperative to affect
rights which otherwise arise under them. Being fraudulent
as against a junior execution, it cannot have the effect to con-
tinue the lien of the judgment as against subsequent judg-
ment creditors, whose executions have been levied before a
second fieri facias was sued out. Its efficiency being para-
lized by the act of the plaintiff, it cannot prejudice the dili-
gent creditor, who has caused the property of the debtor to
be first seized ; but as it respects him, it is as if no execu-
tion had ever issued.
It has been supposed from what was said arguendo in the
opinion of a majority of the court, in Wood v. Gary et al.
that the interference of the plaintiff should be fraudulent in
Jact } in order to impair the lien of the suspended execution ;
and this conclusion, it is contended, is enforced by the Br.
Bank at Huntsville v. Robinson, 5 Ala. Rep. 623, and Tur-
ALABAMA _
Patton v. Ihiyt-.T, Jotinson &Co.
ner v. Lawrence, 1 1 Ala. Rep. 426. Attention to the facts of
these cases will show, that although some stress may seem
to be laid upon the absence of fraud, as a fact, what was said
upon the point was not material, and did not enter into the
decision of the cases, and cannot therefore be regarded as au-
thoritative, even if it be in conflict with the view we have
taken of the law.
If then, the lien of first the execution was destroyed by the
direction of the plaintiff to hold it np, no consequences preju-
dicial to the defendants in error would result from its having
issued. But it would effect no purpose as against them
being as we have seen fraudulent in law, and of consequence
void. In determining the superiority of the respective liens,
the plaintiff in error stands precisely in the predicament as if
no execution had issued in his favor until the levy of the de-
fendant's^, fa's. This being the case as against the defend-
ants, his judgment would be dormant and inoperative by the
failure to sue out a valid execution within the year and a day,
and though his judgment was prior in time, its collection
would be postponed. See Conard v. The Atlantic Insurance
Co. 1 Pet. Rep. 386; United States v. Morrison, 4 Pet. Rep.
124; Porter v. Cocke, Peck's Rep. 30; Moliere v. Noe, 4
Ball. Rep. 450; Kernper v. Hock, 1 Watts' Rep. 9; U. S.
Bank v. Winston's Ex'r, 2 Brockb. Rep. 252 ; Jackson v.
Knight, 4 Watts & Sergt. Rep. 412 ; Burney v. Boyett, 1
How. Rep. (Miss.) 39; Grand Gulph v. Henderson, 5 Ib.
292 ; Michie v. Planters' Bank, 4 Ib. 178 ; Lucas v. Stewart,
3 Smedes & Marsh. Rep. 231; Pickett v. Doe, 5 Ib. 470;
Mansony &f Hurtell v. The U. S. Bank and Assignees, 4 Ala.
Rep. 735.
It is stated in the bill of exceptions, that the first execu-
tion sued out by the plaintiff in error, has never been return-
ed, "but was held up by the plaintiff, or is still in sheriff's
hands." If we are to understand by this, that the proof
showed either that the plaintiff was active in preventing the
mandate of his fieri facias from being executed, or that the
sheriff mero motu failed to make the money thereon, our
conclusion must be the same as if the positive interference of
the plaintiff had been proved. It devolved upon the circuit
court to determine which of these alternative facts was es-
JUNE TERM, 1848. 23
Patton v. Hayter, Johnson &. Co.
tablished, and we must intend, that that court supposed the
first at least was proved, as its existence was necessary to
the judgment we are called on to revise. If this hypothesis
be false, it should have been negatived by the bill of excep-
tions, either by a positive statement, or a recital of all the ev-
idence submitted. It is well settled, that a bill of exceptions
shall be taken most strongly against the party excepting, and
that all reasonable presumptions shall be indulged by an ap-
pellate court in favor of the judgment of a subordinate juris-
diction. Under the influence of these principles we may
rest our conclusion upon this point. It remains but to add,
that the judgment of the circuit court is affirmed.
DARGAN, J. Although I agree with the court, that the
judgment in this case should be affirmed under the facts, yet
I cannot assent to the proposition, that t^e lien of an older
judgment creditor, on the real estate of the defendant, will
be postponed in favor of a junior, on the ground alone, that
the sheriff has been instructed by the plaintiff in the elder
judgment, not to sell under the execution issued thereon, or
because the plaintiff has held it up, and declined to have the
land sold. If the plaintiff in the older judgment has a valid
execution in the hands of the sheriff, at the time of the sale
under the junior judgment, he is certainly entitled to have
his older lien satisfied, and has priority over the junior judg-
ment creditor. And although the plaintiff may have, from
time to time, previously ordered a stay of the sale, or a return
of the execution, this, in my opinion, will not postpone his
lien on the real estate of the defendant, in favor of a junior
judgment creditor.
ALABAMA.
loore v. B
MOORE v. BRIGGS.
1. M, purchased a carriage of B, and for the payment of J50 dollars, part of
the price, drew an order in favor of B, as follows: "Mr McGuire will please
pay, when collected, of fees now due, as orphans court fees, one hundred
and fifty dollars, and I am to be responsable for interest on this order, until
paid," which was accepted by McGuire. B, at the same time, in writing,
acknowledged the receipt of the order, and other claims, in payment of the
carriage. It was proved that more than $150 was due M, in fees, when
the order was drawn, but that McGuire did not collect them, but turned
the fees, and fee docket, over to one Blount, his successor in the office of
county court clerk, of which M was judge. Held, that in the absence of
fraud, or mistake in giving the order, and executing the receipt, and there
being no proof that the fees were not due, and could not be realized, or
that M had interfered to prevent the collection of the fees, B could not
maintain an action against M, upon the original consideration.
Error to the Circuit Court of Tuscaloosa. Before the Hon.
T. A. Walker.
THE facts will appear in the opinion.
S. D. J. MOORE, for plaintiff in error. The only question
is one of payment. Did Briggs receive in payment of the
carriage, the order set out in the bill of exceptions? Briggs
himself so declares in his receipt to plaintiff in error, and the
proof shows such to be the case, independent in the order.
If received in payment, there is an end of the question ; the
judgment must be reversed.
N. L. WHITFIELD, contra.
The order for the fees was not made payable to Briggs,
and Moore could at any time have arrested the collection, or
prevented the payment to Briggs ; and as McGuire was not
responsible to Briggs, for a failure to collect, it follows that
upon the failure of McGuire to collect the fees, and the refu-
JUNE TERM, 1848. 25
Moore v. Briggs. ".
sal of Moore on demand to pay, an action will lie on the
consideration of the original contract.
The plain meaning of the whole is, that the contract was
contingent, and was to be a payment only in the event Mc-
Guire collected the fees. It is wholly unlike the case of
Harrison v. Hicks, 1 Porter, 423.
He further insisted, that the receipt executed by Briggs
was not conclusive, but was open to explanation ; and cited
Gayle v. Randle, 1 Stew. 529 ; Sanders v. Hendrix, 5 Ala.
224 ; Hogan & Co. v. Reynolds, 8 Id. 59.
CHILTON, J. This was an action of assumpsit by the
defendant in error against the plaintiff. The declaration con-
tained only the common counts. Pleas, non-assumpsit and
payment. Verdict and judgment for the plaintiff below. It
appears from a bill of exceptions sealed upon the trial, that
the plaintiff below proved the defendant had purchased of
him a carriage ; that one hundred and fifty dollars of the
price to be paid for it remained unpaid, (to recover which
this suit was brought.) That for this sum the plaintiff re-
ceived of Moore an order on one Moses McGuire, as follows :
"Mr. McGuire will please pay, when collected, of fees now
due as orphans' court fees, one hundred and fifty dollars, and
lam responsible for interest on this order till paid. July 10,
1846. (Signed,) S. D. J. Moore. ' : This order was ac-
cepted by McGuire, and was read in evidence to the jury.
The plaintiff also proved, that the fees upon which said or-
der was drawn, accrued while said McGuire was clerk of the
county court, and before said order was given. That after
it had been accepted by him, McGuire turned over his fee
docket to his successor, Blount, and told the plaintiff he
would not collect said fees, and refused to pay said order.
Of this refusal the plaintiff notified Moore, and demanded of
him payment, before bringing this action.
The defendant below proved that McGnire, at the time of
accepting the order, promised to proceed and collect the fees;
that fees to the amount of three hundred dollars were then,
and are still due from solvent men. Also, to prove payment,
Vol. 154
26 ALABAMA.
Moore v.
the defendant read a receipt in the following words: "Re-
ceived of S. D. J. Moore, in payment of a carriage, an order
on M. McGuire for one hundred and fifty dollars, and a note
on Faver & Forrest for one hundred and forty dollars, due
the 1st of January, 1844, and a note of said Moore, due 2d
Monday in December, 1846, for thirty-two dollars, and in
addition said Moore is to deliver his old carriage and har-
ness. This l()th July, 1846. (Signed,) Amos Briggs."
The court charged the jury, " If they helieved from the evi-
dence, that defendant had purchased a carriage from plaintiff,
and in part payment had given the order above copied, drawn
on a particular fund when collected, and not for the payment
of money directly, and that the order was accepted by Mc-
Guire, who had been clerk of the county court, and that Mc-
Guire had faUed to collect the fees mentioned in the order,
and had turned the fees and fee docket over to Blount, the
then clerk, and also, had notified the plaintiff he would have
nothing more to do with it, and after this, the plaintiff had
notified the defendant of McGuire's refusal to pay. and de-
manded of him the sum for which said order was given, and
defendant refused to pay it the order being such an instru-
ment as could not be sued on the plaintiff had a right to re-
cover on the original consideration, whatever sum he had
proved to be due him for the carriage sold to defendant.
That the order can only be allowed to go before the jury for
the purpose of showing, and explaining the transaction, and
to show that it was an instrument that could not be sued on."
For the foregoing charge the defendant below excepted,
and assigns the same for error in this court.
We do not see upon what principle the charge of the cir-
cuit court can be sustained. The receipt of the defendant
distinctly states, that the order on McGuire, with the other
notes, and the old carriage and harness, were received in pay-
ment of the demand now sued for.
No fraud or mistake in giving the order, or in the execu-
tion of the receipt is alledged. or pretended to be proved.
So far as the history of the transaction is set forth in the re-
cord, it appears the plaintiff below obtained all he contracted
for; he agreed to receive inpayment an order on McGuire
for fees which were due in the orphans' court. This order
JUNE TERM, 1848. 27
Moore v. Briggs.
was duly accepted, and the fees were then, and still are due,
and subject to the order when collected.
The case at bar bears a strong analogy to the case of Har-
rison v. Hicks, 1 Porter's Rep. 423. There an order had
been given, and accepted as payment by the creditor, drawn
on the Cherokee agency, for money due from the govern-
ment of the United States to the drawer. The holder had
twice applied for the money, but failed to obtain it, as the
government had not then placed the agency in funds. Held,
that if the order was accepted as payment and discharge of
the debt, by the contract between the parties, in the absence
of fraud, or some failure, such as the record did not disclose,
the contract should prevail. See also, Lowry v. Murrell, 2
For. Rep. 280; Minor's Rep. 299; 1 Stew. Rep. 220; 2 Ib.
498 ; 1 Stew. & For. Rep. 446 ; 2 For. Rep. 401 ; 9 Ib. 146;
7 Ala. Rep. 955 : 10 Ala. Rep. 755. In Trotter v. Crockett,
2 For. 411, the court (Thornton, J.) says, "if the transfer
were intended as an absolute payment, then there can be no
resort to the original note, nor to the original consideration
of that note." By the charge of the court in this case, the
contract of the parties is abandoned. They have said the
order shall be a payment, the effect of the charge is. that it
shall not so operate.
If Moore, by any conduct of his, had prevented the plain-
tiff below from realizing the fund upon which the order is
drawn, (as the counsel for the defendant in error contends he
might have done,) then there would be force in the argu-
ment, that he should be liable on the original consideration,
as he should not plead a contract which he has violated, in
bar of a recovery. But this is not pretended. On the con-
trary, the fees, which were collected, are to satisfy the or-
der are due from solvent men, and can be realized and ren-
dered available to the defendant in error. That he may have
difficulty in collecting such fees that delay may intervene,
and that the clerk may omit to issue executions for their col-
lection, or may refuse to pay over the amount when collect-
ed, as by his acceptance of the order he is bound to do, only
proves that the plaintiff below may have made a bad trade,
but certainly, in the total absence of all fraud, imposition, or
28 ALABAMA.
Smith v. Ruddle et al.
mistake, do not authorize him to disregard the contract, and
sue upon the consideration.
We need say nothing as to the right of the party to ex-
plain the receipt, as no explanation was offered to be proved,
tending to show that it did not truly set forth the contract
of the parties.
Let the judgment be reversed, and the cause remanded.
SMITH v. RUDDLE ET AL.
1. A deed made in Georgia, by which in contemplation of marriage, slaves
are conveyed to trustees, in trust for the separate use of the wife, is not
such an instrument, as is by law required to be recorded, on the removal of
the property to this State.
2. Slaves being conveyed to trustees, for the separate use of the wife, with
remainder to her children, they permitted the husband to have the pos-
sesion of the slaves, which he retained for more than three years, and
then sold them. Held, that the statute of frauds, had no applcation, and
that the fact, that the husband had been in possession three years before
his sale, did not affect the title of those in remainder.
Error to the Circuit Court of Montgomery. Before the
Hon. J. D. Phelan.
THIS was an action of trover, to recover the value of a
negro girl, brought by the defendants in error against the
plaintiff. On the trial a bill of exceptions was taken to the
ruling of the court, which shows, that the plaintiff in the
court below, to show the title to the slave in controversy,
introduced a deed in evidence, bearing date October, 1836,
made and executed in Richmond county, State of Georgia,
by Elizabeth H. Greenwood, and George Ruddle, which re-
cites, that a ma.riage was about to be solemnized, between
the said Elizabeth H. Greenwood, and George Ruddle, and
JUNE TERM, 1848. 29
Smith v. Ruddle et al.
that the said Elizabeth was entitled to a legacy under her fa-
ther's will ; that by the 5th clause of the will, it was requir-
ed, that a marriage settlement should be made, conveying
the property to which the said Elizabeth H. should be enti-
tled, to trustees, for the use of said Elizabeth and her chil-
dren, and in consideration thereof, and to carry into effect
the will of the testator, the said Elizabeth H., with the con-
sent of the said George Ruddle, which is evidenced by his
signing said deed as a party, thereby conveyed, bargained,
and sold unto Robert I. Greenwood, and George Schley, all
her interest in the said estate, and after the division of the
estate, the said Robett I. Greenwood, and George Schley,
were to take the legal title, and hold the same in trust, and
to receive the rents, issues, and profits of said property, dur-
ing the joint lives of the said Elizabeth H. and Geo. Ruddle,
and to pay the same to the said Elizabeth H., notwithstand-
ing her coverture, for her sole and separate use, during the
joint lives of the said George, and his intended wife Eliza-
beth H, but so that the said Elizabeth shall not have power
to mortgage, or sell the same, or otherwise dispose of the
property by way of anticipation : and at the death of the
said Elizabeth H., the property, both real and personal, was
to go to, and be equally divided between such children, as
she may have, living at her death. This deed was acknow-
ledged and recorded in the county of Richmond, in the State
of Georgia. The negro sued for, is a part of the estate allot-
ted to the said Elizabeth, and was conveyed by said deed.
It was also shown, that George Ruddle, the husband, after
the marriage, received the slave from the trustees, in the year
1837 ; and in the year 1839 removed to Montgomery county,
Ala. and continued in possession, controlling said slave as his
own, until March, 1843, when he sold her to the plaintiff in
error, who had no notice of said deed, nor was there any in-
strument in writing between George Ruddle and the trus-
tees, showing the terms upon which he received said slave
from the trustees. The plaintiff's title accrued by the death
of their mother, Mrs. Elizabeth H. Ruddle, who died in Sep-
tember 1843.
The court charged the jury, that the statute of frauds, re-
lating to three years possession did not apply to this case a
30 ALABAMA.
Smith v. Ruddle et al.
verdict and judgment was rendered in favor of plaintiffs be-
low, and this charge of the court is here assigned as error.
ELMORE & YANCEY, for plaintiff in error.
1. The deed does not provide for the possession of the hus-
band or wife, but excludes it. The trustees are to hold the
property and pay the profits to the wife. They can also sell
at their discretion.
2. Ruddle's possession is not under the deed, but is incon-
sistent with it, and he holds under no instrument showing
the nature of his possession, but controls the property and ex-
ercises dominion over it in this state more than three years,
and sells a negro to Smith, who has no notice of the deed
and no other notice of the condition of the property than
what the law annexes to the possession, with claim of pro-
perty. A case precisely within the terms and the mischief
the statute. Clay's Dig. 255, 2, last clause of section*
3. Nor can the husband's possession be referred to the
wife's interest, for she had none in the corpus, but in the pro-
fits. Her possession would be illegal, because contrary to
the deed, and his possession cannot be referred to an invalid
one of the wife, so as to defeat the statute.
4. The possession was in the husband, and as the wife was
not entitled to it, the law will now presume his possession to
be her's, as it would, if she was entitled to the possession,
or if she had an interest in the corpus.
5. If the negro belonged absolutely to the trustees, it
would not admit of a question, and it is the same thing when
the title and possession belong to them.
If contrary to the trust, they permit Ruddle to get hold of
the property, and so to act as to perpetrate a fraud on an in-
nocent purchaser they must suffer and be held responsible
to the children.
The deed is not impeached, but the possession of Ruddle,
under the statute for three years, by his sale vested the pro-
perty in Smith, and on his possession we rely not on any
thing in the deed as contrary to law, or as not probated and
recorded.
J. W. PRYOR, contra.
The plaintiffs are purchasers for valuable consideration.
JUNE TERM, 1848. 31
Smith v. Ruddle et al.
The children of the parties are within the consideration of the
marriage. Fraudulent Conveyances, 110, 123.
If any conveyance be of goods or chattels, and be not
on consideration deemed valuable in law, it shall be taken to
be fraudulent within this act, unless the same be by will, du-
ly proved and recorded, or by deed in writing, acknowledg-
ed or proved. Clay's Dig. 255, <> 2. Now the case does not
come within this part of the statute, for the "conveyance"
was founded on a " valuable consideration."
But this court has decided that a marriage contract does
not come within the purview of our registry statutes. Swift
v. Fitzhugh, 9 Porter, 39.
The contract was valid was founded on a valid conside-
ration did not require to be registered. Now the mother of
the plaintiffs was entitled to the possession of the negroes,
and the possession of her husband will be referred to her ti-
tle under the marriage contract. The possession is with the
party who has the use of the property. 1 Hill's S. C. 16, 21.
But section 3, 225, is conclusive in this matter. Doubtless
the word "good," in this section, should be construed to
mean " valuable."
The deed is silent about the possession. It vests the legal
title in trustees, and rents, issues, &c. in wife for life, and
then to the children. The children are purchasers for valu-
able consideration are infants and took a vested estate.
Their title therefore could not be defeated, unless the trustees
had sold the property, &c.
DARGAN, J. It is not denied, but that the children, after
the death of the mother, became entitled to the property by
the terms of the deed. But it is contended, that as George
Ruddle had the possession of the slave, three years before he
sold her to the plaintiff in error, and the terms on which he
received said slave from the trustees not being reduced to
writing and recorded, and the deed of 1836 not being re-
corded in Alabama, the title of the plaintiff in error, who was
a bona fide purchaser, is perfect under the statute of frauds
of this State.
That portion of the act relied on, is in the following lan-
guage : "And in like manner, when any loan of goods and
M ALABAMA.
Smith v. Ruddle et "air
chattels shall be pretended to have been made to any person,
with whom, or those claiming under him, possession shall
have remained by the space of three years, without demand
made, and pursued by due course of law on the part of the
pretended lender, or where any limitation, or reservation
shall be pretended to have been made, of a use, or property,
by way of condition, reversion, remainder, or otherwise, in
goods, and chattels, the possession whereof shall have re-
mained in another as aforesaid, the same shall be taken, as
to the creditors and purchasers of the person aforesaid so re-
maining in possession, to be fraudulent within this act, and
that the absolute property is with the possession, unless such
loan, reservation, or limitation of use, or property, were de-
clared by will, or deed in writing, proved, and recorded as
aforesaid."
That the omission to have the deed of 1836 recorded, does
not affect the title of the defendants in error, is fully shown
by the case of Swift v. Fitzhugh, 9 Porter, 39, for the instru-
ment is not within either the spirit, or intention of the terms,
"deed of trust, mortgage, or other legal incumbrance," as
used in the act of 1824. The instruments designed by this
act to be recorded, are such as create an incumbrance, or
charge upon the property, for the payment or security of a
debt, or demand, which do not absolutely convey away the
title to the property, but only incumbers it with the payment
of the debt ; and it is manifest that this deed is not of that
description. The only question then, is, did the sale of
George Ruddle, connected with his previous possession, for
more than three years, give the plaintiff in error title, as
against the defendant in error? We think the object and
design of the clause of the act of 1803, relied on by the
plaintiff in error, was to subject the title of the pretended
lender to the payment of the debts of him, to whom the loan
was made, and with whom possession shall have remained,
for the space of three years ; or if the person so retaining the
possession should sell to a bona fide purchaser, then to de-
feat the title of the lender altogether. But we are clearly of
opinion, that it was not the design, or intention of the act, to
defeat a title outstanding in another, over which the pre-
tended lender had no authority, or control. Suppose, for
JUNE TERM, 1848. 33
Smith v. Ruddle et al.
the sake of illustration, that the lender had a life estate in
the chattel, and he loaned it to another for an indefinite peri-
od of timo, and possession remained with him for three years,
the terms of the loan not being reduced to writing, and re-
corded. In such a case, by the words of the statute, the ab-
solute property shall be considered, with the possession, in
favor of creditors, and purchasers. But it is manifest that
the term absolute property, means only such property as the
lender had in the chattel. For if instead of lending, the
tenant for life had made an absolute sale to the party, pur-
porting to convey the absolute right to the chattel, and pos-
session had remained three years under this sale, and then
the purchaser had sold bona fide to another, it could not be
maintained, that this statute was intended to defeat, or would
defeat the title of the remainder man, who became entitled
to possession, after the death of him who had a life estate in
the chattel.
This view, we think, fully shows, that the whole scope
and design of the clause of the act relied on, was to subject
the title of the lender, to the claims of the creditors and pur-
chasers of him to whom the loan was made, or to the credi-
tors and purchasers of those claiming under him.
Tested by this rule, the title of the defendants in error has
not been defeated by the sale of George Ruddle. The trus-
tees, Greenwood and Schley, had only the legal title vested
in them, during the life of Mrs. Ruddle. The plaintiff below,
on her death, became entitled to the property, and this title
could not be defeated by any act of the trustees, contrary to
the terms of the deed ; and whatever effect the statute may
have on the title of the trustees, (if it can affect a mere naked
legal title,) it has no effect whatever on the title of the de-
fendants in error, under the circumstances disclosed in the
record. Let the judgment be affirmed.
Vol. 155
34 ALABAMA.
Cullum v. Bloodgood, Ford, et als.
CULLUM y. BLOODGOOD, FORD, ET ALS.
1. R & F, partners, having raised money by the acceptance of Bloodgood,
placed in his hands for his protection, four bills of exchange, drawn for
the accommodation of R & F, by B, C, E and H. Bloodgood was com-
pelled to pay his acceptance, and the bills of B, C, E and H, were also
dishonored. R then placed in the hands of an attorney, a large amount
of notes on third persons, and gave written directions, that the money,
when collected, was intended to secure Bloodgood, C, E and H, and two
other persons who are mentioned, B, the drawer of the other bill, who was
not mentioned, having claims of R & F in his hands, on which he claimed,
a lien for his protection, and which he subsequently delivered up to Blood-
good, upon an understanding with him, that he was not to be held respon-
sible on his bill. The attorney collected a portion of the money, and ap-
propriated it according to the written directions, of which an account was
rendered. Subsequently, Bloodgood brought suit against C, E and H, on
the dishonored bills, and recovered a judgment against each, less than the
amount of the bills, the account being present, and being made the basis
of the judgment, which judgment was afterwards revived by scire facias.
C afterwards filed his bill, alledging a loss by neglect of Bloodgood, and
especially insisting upon an account by Bloodgood, of the claims received
by him from B. Held, first, that the defendants to the suits at law, were
concluded by the judgments at law, from opening the account in equity.
Second, that as the accounts were all on one side, and not complicated,
equity would not take jurisdiction on the score of account, a trial having
been had at law, and no sufficient excuse being shown for the failure to
defend there.
2. Each partner possesses an equal, and general power, in behalf of the firm,
to pledge, exchange, or otherwise dispose of the partnership effects, for
any, and all purposes within the scope of the partnership. One partner
may assign property for the benefit of one, of several, or of all the joint
creditors. Whether one partner can make a general assignment, of all
the partnership effects, quere.
Error to the Court of Chancery sitting at Mobile. Before
the Hon. A. Crenshaw, Chancellor.
THE bill which was filed by the plaintiff in error, alledges,
that in the year 1836, the firm of Ross & Ford was indebted
to John Bloodgood, in the sum of $25,000, for money which
he had been compelled to pay for them as acceptor on certain
JUNE TERM, 1848. 36
Cullum v. Bloodgood, Ford, et als.
bills of exchange. That for the purpose of discharging this
liability, said firm of Ross fy Ford, applied to Cullum, (the
plaintiff in error,) John F. Everitt, Joseph Bates, and one
Wait S. Hoyt, for the use of their names, on certain bills of
exchange, as follows : Everitt's bill for $6,53725; Cullum's
for $6,423 25 ; Bates's for $6,320 IS ; and Hoyt's for $6,226
28 ; all of which became due in 1837, and were accepted by
Ross 4" Ford, and all of which were delivered to said Blood-
good in discharge of said indebtedness, he knowing that
these bills were made for the accommodation of Ross &>
Ford. These bills were all protested, and the parties thereon
became liable to pay the several amounts due thereon.
That on the 21st February, 1837, Ross ^ Ford, for the
protection and indemnity of said Bloodgood, and of plaintiff
in error, and the said Everitt, Bates, and Hoyt, delivered to
one Charles Bellinger, the authorized agent of Bloodgood,
divers notes, amounting to the sum of $29,459. That the
said Bloodgood proceeded at law against the said Everitt,
and Hoyt, and recovered judgment against them on their re-
spective bills, or drafts, and also against plaintiff in error for
the amount of his bill, and recovered a judgment for $6,423
78, with interest, costs, $*c., and execution has issued thereon.
That Bloodgood has not prosecuted any suit against Bates,
because, as he alledges, the liability of said Bates has been
extinguished, by the application thereto of certain notes,
made by one Dumas, and others, in favor of Ross &, Ford,
and charges that Ross & Ford, never authorized Bloodgood
to make any such application of said notes, but that the ap-
plication should have been made rateably, on the whole debt
of Ross & Ford.
That when the said notes were transferred to Bellinger,
the parties were all solvent, and that he has collected and
realized the same, but has made no appropriation thereof to
the credit of Ross & Ford, or to the discharge of the bills
drawn by plaintiff in error, Everitt, Bates & Hoyt.
He further charges, that he is ignorant of the true state of
the accounts, but believes, and charges, that a sufficiency has
been collected, to pay off and discharge the bills drawn by
plaintiff in error, Bates, Everitt & Hoyt, and if not, that it
has been lost by his negltct. The prayer of the bill is for
ALABAMA. _
CuUum v. Bloodgood, Ford, et ala.
an injunction against the judgment at law, for an account, and
for general relief.
Accompanying the bill as an exhibit, is the receipt of Del-
linger, " Mobile, February 21st, 1837. Received of Messrs.
Ross & Ford, the following bills to collect, being collateral
security for certain sums due John Bloodgood, of New York;"
then follows a list of the claims, amounting to $29,459 54.
Bloodgood answered the bill, and states, that Jack F.
Ross, of the firm of Ross & Ford, applied to him to raise
money through his (defendant's) drafts on New York, de-
fendant to be reimbursed for money advanced to Ross, re-
ceived from Ross, the four drafts of complainant and others,
described in the bill. That they were not paid at maturity,
and he having negotiated them, was compelled to take them
up. That the notes specified in the exhibit, were delivered
by Ross, to the law firm of Gordon, Campbell, fy Chandler,
in February, 1837. That said Ross, left with said firm,
written directions, which after describing the notes, proceeds
thus: The above notes, are intended to secure Mr. Blood-
good, and the parties to the following paper, viz : John F.
Everitt's bill, C. Cullum's bill, W. S. Hoyt's bill, (which
are described, and are the same mentioned in the bill of
complaint.) Also, Ross, Hoyt & Ford's bill, on William
Bloodgood, dated 7th November, 1836, at sixty days, for
$6,000 ; and one other, dated 23d November, 1836, at sixty
days, for $2,000. That said papers were placed in the at-
torneys' hands, with these instructions, and when any col-
lections were made, these instructions were produced as their
guide, in the application of the money.
The defendant attaches to the answer as an exhibit, an
account current, showing all the collections that have been
made, and the application of the money. This account was
rendered before the judgment was obtained against the com-
plainant; the original was before the court on the trial of the
cause, and constituted the basis of the judgment then render-
ed. There was a full trial of one of the causes, and by an
arrangement they were all decided on the same evidence.
In regard to the draft of Bates, he states the fact to be,
that Bates held the notes on Dumas, for his own personal se-
curity, and by arrangement with Bates & Ross and Ford,
JUNE TERM, 1848. 37
Cullura v. Bloodgood, Ford, et als.
the Dumas notes were placed in the hands of lawyers for
collection, and when collected to be applied in payment of
the draft of Bates, in the hands of defendant ; but that this
arrangement was entirely separate, and distinct from the oth-
er, having no connection with it.
The judgment against plaintiff in error bears date 21st
May, 1840, and is for the sum of $5,472 12, which was re-
vived by scire facias on the 3d December, 1844, both of
which are in full force, and have not been satisfied, or paid
off. That the collections made by defendant, were all made
prior to the judgments, and he then states the condition of
those which have not been collected. That in making out
his account current, an error intervened, which he after-
wards corrected, but which by mistake was overlooked, and
he is willing now that the judgment should be considered
as if entered for the true sum, viz: $3,430 38.
That he is informed no more can be collected on the Du-
mas notes, and that the loss on the Bates debt is greater than
it would have been, if his claim had been put on the same
footing as the others.
Testimony was taken, which, so far as it is important, is
adverted to in the opinion of the court.
The chancellor considered that there was no equity in the
bill, as the complainant could have made his defence if it ex-
isted, upon the trial at law ; but as the defendant admitted a
mistake in the judgment, and offered to correct it, he direct-
ed the correction to be made. This decree is now assigned
as error.
A. F. HOPKINS and P. HAMILTON, for plaintiff in error.
1. The bill charges, that the four bills aforesaid, which
Bloodgood held were known by him to have been drawn for
the accommodation of Ross and Ford, when he received
them from Ross ily* Ford. As his answer does not deny his
knowledge of this fact, it is in effect admitted by him. 1
Porter's Rep. 375; Lecatt v. Sallee, 3 Porter, 125. As the
acceptors of the bills passed them to John Bloodgood, before
the maturity of them, Bloodgood had constructive notice that
they were drawn for the accommodation of Ross & Ford.
Wallace v. The B. Bank at Mobile, 1 Ala. 565.
38 ALABAMA.
~~ Ciillinn v. Bloodffood, Ford, etals.
2. The directions constituted no contract, for they were
given by Ross alone, who had no authority to give them to
the attorneys, who were no parties to the only contract which
existed upon the subject, and who, by their receipt for the
notes, recognized rights in Bellinger, to which the authority
of Ross to give the directions was in direct opposition.
3. After the execution of the receipt by Bellinger, the im-
plied trust created by it in favor of the complainant, could
not have been impaired or altered without his assent, if Ross
& Ford and Bloodgood had all agreed, that Wm. Bloodgood
should receive from the collaterals, what had been improper-
ly paid to him. Fell on Guarantees, 216, 8; 214, 6;
3 Atk. Rep. 91 ; 4 Vesey, jr. 824, 829.
4. The complainant is entitled in equity to his share of
the proceeds of the collateral security, which have been ap-
plied with the approbation of Bloodgood, the defendant, to
the payment of the debt due to Wm. Bloodgood, from
Ross, Hoyt fy Ford. The effect of this application was, to
diminish, by the authority of the defendant, Bloodgood, a se-
curity to the benefit of which the complainant was entitled.
The complainant has a right in equity to a discharge from
his bill of exchange, to the extent of his share in the sum
which was paid from the proceeds of the collaterals, to Wm.
Bloodgood. 1 H. Black. Rep. 123, 136. The defence of
the defendant is an equitable one, of which a court of law has
no jurisdiction. McBroom v. The Governor, 6 For. R. 45 j
1 H. Black. 123, 136, note 1.
5. The attempt to make, and the failure of an equitable
defence at law, does not preclude the unsuccessful defendant
at law from the relief to which he is entitled in equity. Mc-
Clure and others v. Colclough and others, 5 Ala. Rep. 65 ;
1 H. Black. R. 123, 136 j 1 Wash. C. 0. Rep. 320 ; 10 Gill
& Johns. 404, 418.
6. The acceptance of the notes of Bumas by Bloodgood,
the defendant, in discharge of the bill drawn by Bates, made
the whole proceeding of the collateral security applicable to
the three other bills, of which that drawn by complainant is
one.
J. A. CAMPBELL, contra.
JUNE TERM, 1848. 39
Cullum v. Bloodgood, Ford, et als.
1. The plaintiff is concluded by the judgmental law from
insisting upon the misapplication of the payments, even if
such had been made. The defence should have been made
upon the trials at law. 1 Vernon, 176; 10 Peters, 497; 1
Stew. 107; 6 Port. 24; 5 Ib. 547; 1 Ala. 103; 2 Ib. 21;
8 Por. 432 ; 7 Ib. 549.
2. The party has acquiesced in these arrangements undu-
ly, and will not be permitted now to disturb them. Rights
have vested, and settlements have been concluded upon the
basis of this account, and injustice would be done by an in-
terference. This proposition is true, even in regard to ac-
counts which grow out of trusts, and for a much stronger
reason, when the errors complained of consists of the appli-
cation of moneys. 3 Johns. Ch. R. 569 ; 1 Bald. 394, 418 ;
2 Ed. Ch. R. 1.
3. We are not required to account to Cullum; Ross &
Ford never having claimed one. Tripler v. Olcott, 3 Johns.
Ch. R. 473.
COLLIER, C. J. The complainant and Everett, Hoyt,
and Bates, with the view of reimbursing the defendant, John
Bloodgood, about twenty-five thousand dollars, which he had
advanced for Ross & Ford, drew four several bills on the lat-
ter ; these bills were accepted, and the acceptors failing to
meet them at maturity as they had undertaken, they were
protested for non-payment. In order to protect the com-
plainant and the other drawers of the bills, and to indemnify
Mr. Bloodgood, Ross $* Ford placed in the hands of C. Del-
linger, the agent of Mr. Bloodgood certain notes and other se-
curities, for money due them from third persons, amounting
to about $29,000. These securities have been realized, and
notwithstanding their collection, Bloodgood has made no ap-
propriation of their proceeds to the payment of the bills ; but
has recovered judgments against the complainant and Eve-
rett and Hoyt, and is seeking to enforce the judgment against
the complainant. The bill particularly alledges these facts,
prays that an account be taken, and that the judgment against
the complainant be perpetually enjoined.
Conceding that the allegations of the bill are founded in
truth, and they show that the complainant had a defence
40 ' ALABAMA.
Cullum v. Blof dgoodTFord, et als.
which he might have asserted at law. They affirm a con-
tract between Ross & Ford and Bloodgood, through his a-
gent Bellinger, to apply the collections made upon the col-
lateral securities to the payment of the bills. This contract
was not for the exclusive benefit of the acceptors, but inured
also to the drawers, and it was competent for the latter to
show the amount collected, and insist upon its appropriation
to the extinguishment of their liabilities. To have made out
the defence it was not necessary at law, any more than in
equity, to prove that the money collected, went into Blood-
good's hands the receipt of it by his attorneys at law, would
be as effectual in one court as the other. In either case it
would be money received for the use of the party, to whose
benefit it was to be applied, and if it was converted to other
purposes by Bloodgood, or his agents, it was no less a pay-
ment under the contract, in virtue of which the securities
were delivered.
This being the case, we can conceive of no objection to
the legal defence. It has been repeatedly held, that where
money is deposited with one person to be handed to another,
or where money is received by a trustee under an assignment
for the benefit of creditors, in either case the beneficiary may
maintain an action for money had and received. Hitchcock
et al. v. Lukens & Son, 8 Port. Rep. 333 ; Stewart v. Con-
ner. 9 Ala. R, 803 ; Huckabee v. May, 14 Ala. 263, and ci-
tations there found.
But it is insisted that the equity of the bill is defensible on
the ground that the controversy embraces matters of account
between the parties. It must be admitted, that "in matters
of account, growing out of privity of contract, courts of equi-
ty have a general jurisdiction where there are mutual ac-
counts, (and a fortiori where those accounts are complicated;)
and also where these accounts are on one side, but a discove-
ry is sought, and is material to the relief. But on the other
hand, where the accounts are all on one side, and no discove-
ry is sought or required ; and also where there is a single
matter on the side of the plaintiff seeking relief, and a mere
set off on the other side, and no discovery is sought or requir-
ed, in such cases courts of equity will decline taking juris-
diction of the case." 1 Story's Eq. 441 ; Kirkman et al. v.
JUNE TERM, 1848. 41
Cullum v. Bloodgood, Ford, et als.
Vanlier, 7 Ala. Rep. 217 and cases there cited. In the case
at bar, the complainant's indebtedness was ascertained by the
bill which he drew, and if any part of the transaction in ques-
tion rested in account, it was the collections made by Blood-
good on the collateral securities. Here then the accounts
are all on one side by no means complicated, and from any
thing alledged in the bill, we cannot infer that a discovery
is necessary. It should rather be inferred from the manner
in which the complainant has stated his case, that the proof
was accessible through the debtors of Ross & Ford, whose
debts were transferred, or the attorneys to whom the collec-
tion of them, was entrusted. The case then does not come
under the head of equity jurisdiction, which the parties have
invoked. See also, Halstead v. Rabb, 8 Porter's Rep. 63 ;
Poage v. Wilson, 2 Leigh's Rep. 490 ; Knotts v. Tarver, 8
Ala. Rep. 742.
It is a general rule, so well established as to have become
an axiom, that a court of chancery will not entertain a cause
where the complainant has a plain and adequate remedy at
law. Where no circumstances of surprise, accident, or fraud,
appear to have prevented a party from having a full and fair
trial at law, upon the matters which form the ground of his
application to equity, an injunction will not be granted.
Holding v. Holding, 1 Murp. Rep. 10. After a cause has
been fully tried and decided in a court of law, equity will not
give relief. So where a defence is purely legal, and the de-
fendant was advised, or might have become informed of it
with proper diligence, and was under no disability, equity
will not interfere, if he failed to avail himself of it. In such
case it devolves upon the complainant to show some suffi-
cient excuse for the failure to defend himself. Perhaps, if
the defence be one of which the two tribunals have concur-
rent jurisdiction, and the defendant fails to assert it at law,
he may notwithstanding resort to a court of equity; but if he
attempts to defend himself in the former tribunal, and fails,
he cannot have the matter retried in the latter. Harrison v.
Harrison, 1 Lilt. Rep. 137; Morrison's Ex'r v. Hart, 2 Bibb's
Rep. 4; Wilson v. Cheshire, 1 McO. Ch. Rep. 241; Morris
v. Ross, 2 Hen. & M. Rep. 408 ; Vanlew v. Bohannan, 4
Vol. 156
ALABAMA.
Cullum v. Bloodgood, Ford, etals.
Rand. Rep. 537; French v. Garner et al, 7 For. Rep. 549;
Lee & Norton v. Ins. Dank of Columbus, 2 Ala. R. 21 ; Pharr
& Beck v. Reynolds, 3 Ala. Rep. 521 ; Stinnett and anoth-
er v. The Branch Bank at Mobile, 9 Ala. Rep. 120; Duncan
V. Lyon, 3 Johns. Ch. Rep. 351; Murray v. Toland, Id. 569.
The principles we have stated are quite sufficient to show,
that the bill does state a case which entitles the complainant
to relief in respect to the collateral securities delivered to the
agent of Bloodgood.
If the complainant was entitled, under a contract with
Ross & Ford, to have any part of the sum collected on the
notes of Dumas, appropriated to the extinguishment of his li-
ability as drawer of the bill, for the accommodation of the
acceptors, he might have reduced the amount of the judgment
against him, jaro tanto, by making his defence before a jury.
The bill does not distinctly alledge such to have been the
fact ; and if we look out of the bill to the answer of Blood-
good and the proofs, the reverse is most manifest. It is per-
fectly clear, the transaction between Ross, Bates & Camp-
bell, in respect to these notes, was intended to transfer to
Bates a special lien upon a sufficient amount of the proceeds,
to extinguish his liability as an accommodation drawer for
Ross & Ford. Such too, must be its legal effect, unless it
was indispensable to the validity of the arrangement, that it
should have had the sanction of Ford.
Mr. Justice Story, in his Treatise on the Law of Partner-
ship, ($ 101.) says, "each partner virtute njficii, possesses an
equal and general power and authority in behalf of the firm,
to transfer, pledge, exchange, or apply, or otherwise dispose
of the partnership property, or effects, for any and all purpo-
ses within the scope and objects of the partnership, and in
the course of its trade and business. The power extends al-
so to assignments of property of the firm, as a security for
antecedent debts, as well as for debts thereafter to be con-
tracted on account of the firm. Nor will it make any differ-
ence, whether the assignment be for the benefit of one credi-
tor, or of several, or of all the joint creditors." But the learn-
ed author concedes, that " it may well admit of some doubt,
whether this power extends to a general assignment of all
the funds and effects of the partnership by one partner for the
JUNE TERM, 1848. 43
Lindsay and Atkinson v. The State.
benefit of creditors." Id.; see also, citations in the notes;
also, $ 126, and citations in notes. In Egberts v. Wood, 3
Paige's Rep. 517, the right of either of the partners, before
the dissolution of the partnership to apply the funds of the
firm to the payment of one creditor to the exclusion of anoth-
er, isdistincily recognized. If this be the law, and we be-
lieve that there is no conflict in the decisions upon the point,
it was entirely competent for Ross, without the concurrence
of Ford, to have made such a disposition of Dumas's notes as
entitled Bates to the money collected on them for his indem-
nity. The proof entirely relieves the transnction from sus-
picion, or mala fides, on the part of either of the parties, and
there is no ground on which a court of chancery can deny
to it validity.
This view relieves ns from the necessity of considering
the questions which have been raised as to the lien of the sev-
eral partners upon the effects of (he firm, for the partnership
debts, and how far this lien may be made available at the
the suit of a creditor. See, however, Story on Part. 97,
132, 133,259, 260, 263, 326, 357 to 361, 390, 391 ; Trip-
ler v. Olcott, 3 Johns. Ch. Rep. 473. We will not stop to
inquire whether, if a proper case for equitable interference,
was made out, the defendant has not slumbered too long up-
on his supposed grievances.
The questions considered are the only ones presented by
the bill, and upon these we have already said, the complain*
ant is not entitled to the relief he seeks. The decree is con*
sequently affirmed.
LINDSAY AND ATKINSON v. THE STATE.
1. An instrument, with a scroll attached to the name of each of the sign-
ers thereof, having the word "seal," written within, and in which the par-
44 ALABAMA.
Lindsay and Atkinson v. The State.
ties " bind and oblige themselves " &c., and use the terms, " the condi-
tion of the above obligation " &c., and which provides, that, upon perform-
ance of the condition, "the above obligation to be void," imports on its face
to be under seal, and will be taken, deemed and held to be a sealed in-
strument.
2. The continuance of a cause is a matter of discretion with the primary
court and is not revisable on error.
3. A judgment will not be reversed for an error that works no injury to the
party against whom it is committed.
4. A judgment nisi on a forfeited bond which recites, that the defendant, to
secure whose appearance such bond was executed, " being called, came
not, but made default, " without specifying _the particular charge, that he
was called to answer, is fatally defective and a judgment final rendered
theron is erroneous.
Error to the Circuit Court of Coffee. Before the Hon. E.
Pickens.
THIS was a proceeding on a forfeited recognizance, at the
instance of the State against the plaintiffs in error, as the se-
curities of one Gardner Hardy. The recognizance is as fol-
lows :
" The State of Alabama, Coffee county Know all men
by these presents, that we, Gardner Hardy, B. T. Atkinson,
John Lindsay, Wesley Lightfoot, Henry Poison, and George
Kilpatrick, are held and firmly bound unto Benjamin Fitz-
patrick, Governor of this State, and his successors in office,
in the penal sum of one thousand dollars, for the true pay-
ment of which we bind ourselves, our heirs, executors, ad-
ministrators, and assigns, jointly and severally, firmly by
these presents. Signed with our hands, and dated the 18th
Oct. 1S43.
The condition of the above obligation is such, that if the
above bound Gardner Hardy shall appear before the Honora-
ble the Judge of the Circuit Court, at a court to be holden
for said county, on the first Monday after the 4th Monday in
March next, at the place of holding the same, then and there
to answer to a bill of indictment pending against him, the
said Gardner Hardy, for an assault with intent to commit
murder, and attend from day to day, and from term to term,
JUNE TERM, 1848. 45
Lindsay and Atkinson v. The State.
until discharged by a due course of law, then the above obli-
gation to be void, otherwise to remain in full force and virtue.
GARDNER HARDY, [seal.]
B. T. ATKINSON, [seal.]
JOHN LINDSAY, [seal.]
WESLEY LIGHTFOOT, [seal.]
HENRY POLSON, [seal.]
GEO. KILPATRICK, [seal.]
Signed, sealed, and delivered, the day and date above
written, in presence of JOHN T. MOODY, sheriff.
At the spring term, 1844, the said recognizance was for-
feited, and judgment nisi entered thereon, upon a scire facias
issued. At the return term of the scire facias the parties
appeared, when a motion was made to quash it, which mo-
tion was sustained, and the cause continued, &c. An alias
scire facias was thereupon issued, and on its return was also
quashed on motion. The solicitor for the state then moved
the court to enter a judgment nisi, nunc pro tune, which
was granted. The amended judgment nisi recites, "and
now comes, &c. and the defendant Gardner Hardy being call-
ed came not but made default," without specifying the of-
fence which he was called to answer. A scire facias issued
on this amended judgment nisi, and at the return term there-
of, the plaintiffs, they alone having been served, appeared to
quash the scire Jacias, which motion was overruled. The
plaintiffs then showed cause why the said judgment nisi
should be reduced to two hundred dollars, which was satis-
factory to the court, and judgment final was accordingly ren-
dered for that amount.
The plaintiffs now assign as error
1. That the instrument set out in the record as a recogni-
zance, is not a sealed instrument, and the court erred in ren-
dering judgment upon it.
2. That'the court erred in continuing the cause after the
first scire facias was quashed, no motion to amend having
then been made.
3. That the court erred in giving judgment final when the
judgment nisi did not set out the offence which the said
Gardner Hardy was called to answer.
46 ALABAMA.
Lindsay and Atkinson v. The State.
SEMPI.E. for plaintiffs in error.
1. No instrument is really a bond, unless it be sealed, and
of this evidence must appear on its face; neither a declara-
tion in the body of the instrument, that it is sealed, nor a
scroll attached, is of itself and alone sufficient. It must be
stated to be sealed, and some act, such as a scroll, attached,
must attest that it is sealed. In this case we have only the
scroll, and the instrument on its face does not show to us
what was meant by the scroll. No other words can supply
the place of the word seal, or sealed. See Henderson v.
Ross, Minor's R. 421; Lea v. Adkins, Ib. 184; Austin's
Adm'r v. Whitlock's Ex'r, 1 Munf. 487.
2. The statute of our state gives the court power to per-
mit an amendment, but in this case no amendment was made,
but after demurrer sustained to the set. fa. instead of an a-
mendment being made, the cause was continued, and a new
set. fa., a different declaration was filed.
3. The judgment nisi mine pro tune does not set out that
the defendant, Hardy, was called to answer the charge of
the indictment, and until this was done, there could be no
forfeiture or breach of the condition of the recognizance. See
Howie and another v. The State, 1 Ala. 113; Farr & Simp-
son v. The State, 6 Ala. 795; State v. Hinson, 4 Ib. 671 ;
jeret al. v. State, 5 Ib. 21.
BALDWIN, Attorney General, for the State.
I. The instrument called a recognizance, imports on its
face to be a sealed instrument.
1. "A recognizance is an obligation of record, entered in-
to before some court of record, or a magistrate duly authoriz-
ed, with a condition to do some particular act."
2. The recognizance contains these words, to wit : " The
condition of this obligation is such," and again, "then this
obligation to be void."
3. An obligation is a word of large extent, but is usually
taken, in the common law, for a bond, containing a penalty,
with condition for the payment of money, or to do some act
or thing. 7 Bac. Ab. 236.
4. Three essentials to an obligation one is, that it must
be sealed. Pamph. Acts 1839, p. 99 ; Williams, use, &c. v.
JUNE TERM, 1848. 47
Lindsay and Atkinson v. The State.
Young, 3 Ala. 145 ; Bancroft's Adm'rs v. Stanton, jr. 7 Ib.
350.
5. If the instrument be really sealed, although it is not
said in the body of it, that the parties have set their hands
and seals, it is nevertheless a sealed instrument. Taylor v.
Glaser, 2 S. & P. 502 ; Meredith v. Hinsdale, 2 Caine's Rep.
362 ; Jeffry v. Underwood, 1 Ark. R. 108 ; Bertrand v. Bird,
4 Ib. 195; Cummins v. Woodruff, 5 Ib. 116; contra, two
cases in Minor's Rep. 187, 421.
II. The cause was not continued, so far as the scire fa-
cias was concerned, for the record shows, that that demurrer
was sustained, and scire facias quashed. Besides, this was
before the judgment nisi nunc pro tune; all proceedings be-
fore that were set aside, and of course the defeneant can't
complain of that.
III. The judgment nisi recited in the scire facias shows,
that the defendant gave bond to appear and answer an in-
dictment for an assault with intent to murder, "and that he
failed to appear and answer said bill of indictment, "after be-
ing called. The crime which he was called to answer is
sufficiently set forth. See difference between this case and
the one against Farr et al, reversed for not reciting the crime
defendant was called to answer. Farr et al v. State, 6 Ala.
795. There is as much certainty in setting out the crime for
which defendant was called to answer in this scire facias,
as is required in staling the breach in an action of debt.
Howie and Morrison v. State, 1 Ala. 113.
IV. The offence being a technical one, a bond to appear
and answer that offence is sufficient, without setting out the
particularsof the offence. A bond to appear and answer an
indictment for an assault and battery is good, without stating
upon whom the assault was committed. Bond to appear
and answer the crime of larceny is good, without stating
whose goods were stolen. Goodwin v. Governor, 1 S. & P.
465.
V. Defendants show cause to the court why the amount of
the recognizance should be reduced from $ 1,000 to $200.
Is not this tantamount to a confession of judgment and re-
lease of errors. Dig. 447, $ 15; Commonwealth v. Offner,
48 ALABAMA.
Lindsay and Atkinson v. The St.ite.
2 Virg. Cases, 17 ; McMechen v. The Mayor, 2 Har. &, J.
41.
CHILTON, J. 1. The objection taken to the bond exe-
cuted by the defendants for the appearance of the prisoner,
Gardner Hardy, namely, that it is not a sealed instrument,
cannot be allowed to prevail. The cases relied upon by the
counsel to sustain it, of Henderson v. Ross, Minor, 421, and
Lea v. Adkins, Ib. 187, do indeed support his position, and
the principle there decided has since been recognized by this
court. Carter v. Penn, 4 Ala. Rep. 140. Which last case
was one in which the parties to the instrument had given no
intimation in the body thereof of their intention to seal it, or
to regard it as a writing obligatory. But it will be observed,
the cases relied upon, were decisions under the law as it
stood before the passage of the act of 1839, which changes
the law, and declares, that " all covenants, conveyances, and
all contracts in writing, which import on their face to be un-
der seal, shall be taken, deemed and held to be sealed instru-
ments, and shall have the same effect as if the seal of the
party or parties were affixed thereto, whether there be a
scrawl to the name of the party or parties, or not."
We cannot well mistake the design of the parties with re-
spect to the execution of the instrument before us, as on the
face of the instrument it clearly imports to be sealed. 1.
They characterize it by the use of technical language, which
can alone be descriptive of sealed instruments. They "bind
and oblige themselves," &c. they speak of " the condition
of the above obligation" and upon performance of the condi-
tion, provide " the above obligation to be void." Besides 2.
The six signers of the instrument, opposite each of their
names, have added the word ''seal," written in the usual
form within a scroll. We think it too clear to admit of any
doubt, that the instrument on its face purports to be sealed,
and that the parties so intended it. At common law, it was
not necessary that it should be stated in the instrument, that
it was sealed and delivered, because these, says Lord Coke,
were things which were done afterwards. 2 Co. 5, a ; Tol.
Law Die. Tit, Bond. Since the common law formality of
sealing by impressions upon wax, or other impressible sub-
JUNE TERM, 1848. 49
Lindsay and Atkinson v. The State.
stance, has gone into disuse, the courts, while they cannot dis-
regard such technicalities as have become interwoven with
the jurisprudence of the country, are disposed, nevertheless,
to look to the instrument as ascertaining the intention of the
parties with respect to its character, rather than to ihe for-
mula of sealing, by scrolls and circumflex lines, opposite the
signature.
2. It is insisted, in the second place, that although the sta-
tute conferred power on the court to authorize an amend-
ment of the scire facias, yet the court erred in continuing
the cause after the demurrer was sustained, no motion being
made to amend. It appears by the record, that on motion
of the defendants, the scire facias was quashed, and an alias
scire facias was ordered to issue upon the original judgment
nisi, and the cause was continued afterwards, upon the re-
turn of the alias, on motion of the defendants, it was like-
wise quashed by the court. Thereupon the solicitor for the
state obtained leave to enter a formal judgment nisi nunc pro
tune, which was done, and the scire facias npon which the
final judgment was rendered, was issued upon this amended
judgment, and in our opinion cannot be affected by any er-
roneous action of the court in respect to the writs that were
quashed. The continuance of the cause after the writ, which
was the foundation of the proceeding, had been quashed, a-
mounted to nothing. The court decided for the defendants
as to the two first writs, and as the proceedings under the
amended judgment have no connection with the proceedings
under the original judgment nisi, which terminated in favor
of the defendants, they cannot be heard to complain, that an
error intervened in the prior proceeding, so as to reverse the
judgment upon the latter. Aside however from this view,
the continuance of causes is matter of discretion in the pri-
mary court, and not revisable on error ; but if it were not dis-
cretionary in this case, and we could revise it, still it is clear
the defendants have sustained no injury. That there was er-
ror is not sufficient the plaintiff in error must show that he
sustains injury thereby. Such have been the uniform de-
cisions of this court.
3. It is contended for the defendants in the judgment, that
Vol. 157
60 ALABAMA.
Lindsay and Atkinson v. The State.
the scire facias and judgment nisi were defective in not set-
ting forth that the defendant was called to answer the charge
specified in the indictment and recognizance.
The judgment, as the same was amended, recites, that the
said Gardner Hardy, (the principal in the bond, and for whose
appearance the same was conditioned,) "being called, came
not but made default." It fails to set forth that he was call-
ed to answer any particular charge, and in this respect the
proceeding is fatally defective.
In Howie and Morrison v. The State of Alabama, 1 Ala.
Rep. 118, the point is expressly decided, and it was there
held, that it should appear by the judgment nisi, that the ac-
cused was called to answer the charge which his recogni-
zance had stipulated he should answer, so that it might ap-
pear the party had forfeited his recognizance. In that case
the bond was conditioned that the party appear and answer a
charge for counterfeiting a certain draft, &c., particularly de-
scribing it. The defendant was called to answer an indict-
ment for forgery. The court held the judgment did not
show a default for which the recognizers should be held lia-
ble. The default against which they had stipulated was for
his failure to appear and answer a particular offence, the
forging a certain draft, which the recognizance described,
while the default of record was for failing to appear and an-
swer for the forgery generally. It might be for the offence
described in the recognizance, or for any other act coming
within the appellation. The case at bar is much stronger
for the defendants. Here, the recognizance is, "to appear
and answer an indictment for an assault with intent to com-
mit murder," the default is, that the defendant, Hardy, was
called, but for what purpose does not appear. It is very clear
that there can be no default until Hardy fails to appear, when,
called to answer the charge for which he has been recogniz-
ed. The case of Farr and Simpson v. The State, is also in
point, to show the proceedings had in this cause cannot be
sustained. See 6 Ala. 794. Also, authorities on the brief of
plaintiffs in error.
It is true, as insisted by Mr. Attorney General, that the
judgment nisi recites, that the defendant failed to appear and
answer the bill of indictment, recited in the bond, &c.; this
JUNE TERM, 1848. 61
Branch Bank at Mobile v. Strother.
is true, but does not answer the objection, that he was not
called to answer it. He was merely called to come into
court not called to answer, and until this is done, he is not
in default, though he fail to answer as the record recites.
The record does not show a confession of judgment for
the $200. The defendants showed cause why the judg-
ment nisi, &c. should, in the opinion of the court be reduced
to that sum. By no rule of construction could the language
employed be considered a judgment by confession.
It follows, that the court below should have quashed the
scire facias, which upon its face, shows the proceedings to
be erroneous.
The judgment is therefore reversed, and the cause is re-
manded.
BRANCH BANK AT MOBILE v. STROTHER.
1. All debts due the bank, after maturity, carry interest, at the rate of eight
per cent per annum.
2. The banks of this State, cannot discount notes, or bills, at the rate of
eight per cent per annum, having a longer period to run than twelve
months : nor can they extend a debt due them, and charge interest by
way of annual discount, in advance. They may discount a bill, or note,
having more than twelve months to run, by ascertaining the present worth
of the note, or bill, at eight per cent, for the time it has to run.
4. A discount of a note, made by calculating the interest for one year, and
multiplying this sum by the number of years the note has to run, and de-
ducting the amount thus ascertained, from the amount of the note, is ille-
gal, whether made by a bank, or by an individual.
4. The statute of limitations will not apply, because a part of the debt has
been paid. The complainant's right to relief exists, whilst the debt con-
tinues, and the payment of any portion of it, will be applied to the pay-
ment of the principal, and lawful interest.
5. A recognition in the bill, of the liability of the complainant to pay the
amount actually due, and lawful interest, and a submission to pay thii
52 ALABAMA.
Branch Bank at Mobile v. Strother.
sum as the court shall direct, invests the court with jurisdiction to render
a decree against him, for the proper amount
6. It is no ground for a reversal, that a reference to the master was prema-
turely made.
Error to the Chancery Court of Mobile. Before the Hon.
A. Crenshaw, Chancellor.
THE defendant in error filed his bill against the plaintiff,
alledging that on the 12th day of February, 1840, he was
indebted to the bank, either as principal or surety, in the
sura of $29,966 09. That on that day he extended the debt,
giving security, and executing six notes, payable on the 1st
of February of each year, one due at one year, and one fal-
ling due each successive year.
The note due in Feb'y 1841, was for $4,340 44
1842, 4.752 52
" 1843, 5,252 32
" 1844, 8,787 07
" 1845, 9,955 41
" 1846, 11,482 38
The bill also alledges, that the three first of these notes
have been entirely paid, and considerable payments have
been made on the fourth and fifth. The whole amount paid
being $25,493.
The bill further alledges, that in taking the new notes,
and casting the interest thereon, errors have been made,
greatly to the prejudice of the complainant, and that the
debt has been increased beyond the amount due for princi-
pal and interest. It is shown by an exhibit to the bill, that
the sum of $29,966 09 was divided and extended, in the
following manner :
In the first note was inclnde'd, $4,000 00
The interest charged for one year, 340 44
In the second note was included, of principal, .... 4,000 00
The note due in two years, interest charged, .... 752 50
In the third note is included, of principal, 4,000 00
Due in three years, interest charged, 1,252 50
In the fourth note is included, of principal, 5,998 69
Interest charged, four years, 2,798 02
The fifth note includes, of principal, 5,998 69
JUNE TERM, 1848. 53
Branch Bank at Mobile v. Strother.
Interest charged for five years, 3,955 39
In the sixth note was included, of principal, 5,988 69
Interest charged for six years, 5,493 69
The bill also alledges, that this overcharge of interest, was
the result of mistake, or if the bank knowingly, or wilfully
charged the amount specified, it would involve them in the
crime of usury, and extortion. That complainant has but
since the last term of this court discovered the error. That
he does not wish to avoid any portion of the debt, and the
lawful interest; that he recognizes his liability to pay the
principal, and all lawful interest, and seeks only to correct
the error. The bill also states, that the complainant has
submitted this subject to the bank, but that it declines to
rectify the error.
The bill prays an account, and that the amount overcharg-
ed be credited to complainant ; and he submits that it be
entered as a credit on the last note, and that the amount due
now, complainant may be permitted to pay on the terms of
the act of assembly, in regard to bank debts, or on such oth-
er terms as shall be considered proper by the court.
The answer of the bank admits that the complainant was
indebted at the time stated, in the sum of $29,960 69, on
the 12th February, 1840, and that on that day he made an
arrangement with the bank, by which the amount was set-
tled, by giving new notes to be discounted by the bank, in
such amounts as would produce the sum then due in cash ;
that a calculation was made at the time, from which it ap-
pears, that the notes tendered by him for that purpose should
be for the amounts specified in the exhibit to the bill. The
answer also alledges, that it was agreed and stipulated at the
time, that the new notes should be discounted in this man-
ner, and they were made for the amount expressed in them,
in order to produce the nett amount of the debt, after deduct-
ing the discount. The answer also admits, that com-
plainant has paid $28,401 27, and avers, that if the new
notes are for more than they were entitled to receive, it was
the result of mutual mistake between the complainant and
respondents, and denies all intent to exact more than legal
interest. The answer also contains a demurrer to the bill.
Before any decree was made by the chancellor, a reference
64 _ ALABAMA.^
Branch Bank f MobihFvTStrother.
was ordered to the register, to state the accounts between
the parties. The language of the reference is, " the court
orders the bill and answer to be referred to the register to
state an account hetween the parties, as follows: to ascer-
tain the amount due the defendant, allowing a discount of
six percent on all the notes, except the first, and on that a
discount of 8 per cent. Also, to ascertain the amount that
would be due, allowing interest on the debt at 8 per cent.,
and to report on what principle the notes were taken, as stat-
ed in the answer."
The result of the report of the register is, that taking off
discount, at 8 per cent, from the notes, for the first yean and
6 per cent, discount for the residue of the time they had to
run, the nett amount in cash they would produce on the day
of discount, would be the amount admitted to be due the
defendant, by complainant, on the day of settlement that
is, the notes thus discounted on the 12th of February, 1840,
would produce in cash $29,966 69 ; and deducting from the
notes the amount admitted to have been paid, and supposing
the mode of settlement stated in the pleadings to be correct,
there is due on the 9th April, 1846, to respondents, $18,931
24. That to allow the respondent interest on the original debt
at the rate of eight per cent, per annum, and to credit him
with the payments admitted to have been made, and first ex-
tinguish the interest due at the time of each payment, and
credit the balance of the payment on the principal, and there
is due to respondent, $14,662 14. The difference in the
two modes of settlement, that is, between the mode adopted
by the bank, and the mode of settlement allowing 8 percent,
interest, is $4,269 18.
The cause was heard on bill, answer, and the report of the
master, and no objections to the calculations of the master
being made, the chancellor decreed that complainant be al-
lowed as a credit, the sum of $4,269 18, to be placed on the
note last due.
From this decree a writ of error is prosecuted to this court.
The errors assigned are
1. That the demurrer should have been sustained.
2. That no reference to the master should have been made
JUNE TERM, 1848. 65
Branch Bank at Mobile v. Strother.
until there was a decree setting forth the equities between
the parties.
3. That the order of reference does not call for such a re-
port as would ascertain the equities between the parties.
4. That the report does not pursue the reference, but va-
ries from it.
5. Decree allowing the complainant the credit.
J. W. LESESNE, for plaintiff.
J. A. CAMPBELL, for defendant in error.
J. P. Strother, in 1840, as principal and surety, was in-
debted to the Branch Bank at Mobile, in the sum of $29,-
966 06. Much the largest portion of this debt was duo as
surety for others. He proposed to extend it, and to give new
securities. The bank accepted his proposition, but took in-
terest by way of discount.
An exhibit to the bill will show the following results :
That on the first year's note the excess was $26 67; second
do., $118 73 ; third do., $298 55; fourth do., 8891 21; fifth
do., $1,580 43 ; sixth do., $2,628 28. When I say excess, I
mean that these amounts exceed the amount of legal interest
on the debt. The principle on which this is accomplished,
will appear in a rhetorical report of the master. No dispute
is made of the fact. The transaction is evidently far more
injurious than the charge of compound interest. By the
charge of compound interest, a debt is doubled in ten years
and a fraction. By the mode of discount, it is doubled in*
little over six years. The interest paid on the sixth note is
above fifteen per cent, per annum. This ia ascertained by
calculation. These calculations have been made in the re-
port.
A very large proportion of the debt was paid at the date of
the bill, and no difficulty exists as to the remainder. This
litigation is bonajide, to obtain relief from oppressive charges.
The law considers, and experience proves, that eight per
cent, is a sufficient compensation for forbearance of a debt.
The rate is exorbitant, when the prices of produce for the
last six years are considered. The rule of law is the rule of
common sense.
56 ALABAMA.
Branch Bdnk at Mobile v. Strother.
Courts will not allow of changes of law by private agree-
ment. Stipulations for compound interest are only allowed,
in a few cases, and under great restriction. There is nothing
illegal in the reservation of the right to charge compound in-
terest, yet, because it tends to oppression and injustice, courts
of chancery interpose to inhibit it. Breckenridge v. Brooks,
2 A. K. M. 335; Connecticut v. Jackson, 1 Johns. Ch. Rep.
13,550; 3 Hen. & M. 89; 6 Johns. Ch. Rep. 313; 2 Porter,
351; 2 B. Mon. 336.
The charter of the bank no where allows the discount of
notes having a longer time to run than twelve months, and
except in two specified cases, the bank is required to charge
only at the rate of six per cent, upon its loans and discounts.
The case before the court did not fall within the terms of the
charter, which allowed the bank to make discounts at the
rate of eight per cent. If this discount proceeded from a mis-
take of law, the court would allow the bank to correct the
result, but surely it would not when the debtor does not dis-
pute the debt allow, the bank to retain the excessive charge.
1 Rich. Eq. R. 414; 1 Bailey's Eq. R. 505. In the court
below, it was hardly contended that the correction should
not be made. The objection taken there was to the frame
of the bill. The bill did not offer to pay the balance due.
On principle, it is evident this was not necessary. A party
who comes into court asking relief, submits himself to such
terms as the court will impose. He assents to do equity.
On authority, the point is clear. It is not necessary to make
*the submission. 4 Eq. Dig. 425, citing 2 Young & C. 15, <>
18. There are several authorities to the same effect.
.
DARGAN, J. The State Bank and its Branches, are al-
lowed to discount notes and bills, at different rates, according
to the time they have to run before maturity; but there is no
special law prescribing the rate of interest these debts shall
bear after maturity, consequently the interest they bear after
they become due, is regulated by the general interest law of
the State, and all bear eight per cent.
On the day of the settlement, all the debts owing by the
complainant to the bank were due, and all were bearing eight
per cent. The agreement was to extend the whole indebt-
JUNE TERM, 1848. 57
Branch Bank at Mobile v. Strother.
edness, dividing it into six annual payments, and notes were
given, falling due from one to six years.
The amount of these notes exceeds the debt, and lawful
interest added to it, $4,269 18. This charge of interest,
over the rate of eight per cent., the plaintiffs in error con-
tend, they had the right to make, and can legally require the
defendant to pay, because they are authorized to discount
notes at eight per cent., having twelve months to run, and
in extending a debt over due, they can charge interest by
way of discount ; or to discount the note, given in extension
of the debt, and apply the proceeds to its payment.
The authorities relied on by the plaintiff's counsel, do hold,
that a bank may discount a note, of its debtor, under an
agreement to apply the proceeds to the payment of the debt ;
and even if the note so discounted, be paid by the discount
of another, such a transaction is not usurious, unless it was
a mere cover to hide usury. The Bank of Utica v. Wagner,
2 Cowen, 712; The State Bank v. Hunter, 1 Dev. R. 100;
9 Mass. R. 49. But we do not think these authorities come
up to this case. In none of the cases referred to, had the
note a longer period than twelve months to run, before ma-
turity. The period of time the notes had to run before ma-
turity, makes the distinction between this cause, and the
cases referred to, and the question is, has the bank the right
by law, thus indefinitely to extend the payment of its debts,
and charge interest by way of annual discounts? If we af-
firm that the bank has the right, we must sanction results,
that the common sense of all mankind would condemn as
oppressive, and unjust. For instance, the note that falls due
the sixth year, nearly doubles the principal, and if it had
been extended twelve years, it would have nearly quadrupled
the principal included in it. Such a rule of computing in-
terest on debts, the payment of which is extended several
years, leads to results that cannot be tolerated by law. 2 A.
K. Marsh. 335; 1 Johns. Ch. R. 13, 550; 6 Ib. 313.
The length of time then that the note, or bill has to run,
becomes a material inquiry, in distinguishing between a legal
discount, and an illegal transaction. In none of the cases re-
ferred to, did this question arise, for none of the notes had
Vol. 158
58 ALABAMA.
Branch Bank at Mobile v. Strother.
more than twelve months to run ; and I have not been able
to find any decisions, that throw much light on the subject,
or lay down any settled rule in reference to it. Mr. Chitty
merely says, that if bills having two or three years to run,
are discounted, and interest thus taken in advance, the trans-
action would be held usurious ; and to the same effect, is the
case of Martindale and Marsh, 3 Bos. & Pul. 154.
I will not, therefore, undertake to lay down a rule, that
shall govern in every transaction. But as the respondents
are authorized by their charter, to discount notes, having
twelve months to run, at eight per cent, per annum, and we
see that some limit must be fixed to the period of time the
note has to run, in order to justify the discount of it at eight
per cent, per annum, we feel no hesitation in saying, that the
bank is not authorized to discount notes or bills at eight per
cent., having a longer period to run than twelve months ;
nor can they extend a debt due to them, longer than twelve
months, and charge interest by way of annual discounts in
advance. They may, it is true, extend the payment of their
debts to any time, they and their debtors may agree, but if
they extend them over twelve months, they can only charge
such interest, as any other individual is authorized by law to
receive of his debtor. We will not say, that the bank may
not discount a note or bill, having longer than twelve months
to run, even at eight percent., if the calculation of the inter-
est to be deducted, be made by the common rules of arith-
metic ; that is, by ascertaining the present worth of the note
or bill, at eight per cent., for the time it has to run. But the
discount intended to be interdicted, is calculated in this man-
ner : first ascertaining the interest for one year at eight per
cent., on the sum mentioned in the note, and then multiply-
ing the interest for one year, by the number of years the note
or bill has to run, and deducting the amount thus ascertain-
ed, from the amount named in the note. We should feel no
hesitation in saying, that the discount thus calculated, when
the note or bill has longer to run than twelve months, is il-
legal, whether made by a bank, or any individual. If the
note or bill had twelve years to run, and was discounted by
this rule, every four dollars received by the maker of the note,
would in effect yield ninety-six dollars interest. Or a note
JUNE TERM, 1848. 59
Branch Bank at Mobile v. Strother.
of one hundred dollars thus discounted, would give to the
borrower four dollars only, although the present worth of a
note discounted at eight per cent, for the same period of time,
is a fraction over fifty-one dollars, if the discount be calcu-
lated by the common rules of arithmetic. The mode of
computation adopted by the bank, in ascertaining the inter-
est to be charged in this case, was to charge interest at eight
per cent, by way of annual discount, for every year the note
had to run. That is. for the first year, they ascertained how
much the principal in the note would yield, if employed in
discounting notes. The second year, they ascertained what
the principal and interest, added together, would yield, em-
ployed in the same manner, and so on for the number of years
the note had to run. If the law would tolerate the extension
of a debt, charging interest by this mode of computation
to any indefinite period of time, had the debt been extended
eighteen years, and the interest cast in the same manner,
would it not be legal ? Yet, if it had been extended eigh-
teen, instead of six years, the principal, in the last note, would
have borne over seven hundred per cent.
The cases referred to in 2 Cowen, and 1 Dev. Rep., al-
though they do in effect hold that a bank may extend a debt,
charging interest by way of discount, yet the extension in
those cases was for a short time, and even if those decisions
are to be relied on as authority, and as affording a correct ex-
position of the law, we cannot extend the principle recognized
by them, to any indefinite period of time, without sanction-
ing results, that both the learned, and the unlearned, with
one voice would pronounce onerous, oppressive and unjust.
If the bank can be permitted to extend a debt over due,
and charge interest by way of discount, their contract must
not embrace a longer period than one year. If they wish to
extend their debts longer, they can only charge interest at
eight per cent, per annum.
The counsel for the plaintiff in error, has submitted an
able argument, to show, that the bank has not been guilty of
usury. It is true, that neither the bank intended to charge,
nor the defendant to pay, more than lawful interest, and the
over-charge of interest, is the result of an improper mode of
calculating the interest, for the time the notes had to run ;
ALABAMA.
Branch Bank at Mobile v. Strother.
and the facts negative the existence of any corrupt intent.
To constitute usury, there must be an intent to take more
than lawful interest ; if more be reserved by mistake, it is not
usury. Nor can it make any difference, whether the mistake
occurs, by adopting an improper mode of calculating interest,
or by erroneously adding, or multiplying figures. 7 Gill &
Johns. 44 ; 10 Id. 300.
I should therefore be inclined to agree with the plaintiffs
counsel, that the facts of this case, do not constitute usury;
yet, because the bank may not have been guilty of usury,
they cannot be entitled to receive the over-charge of interest,
but the notes to the extent of the over-charge are void, for
the want of consideration, and to this extent is the plaintiff
entitled to relief.
But it is objected that the right to relief is barred by the
statute of limitations. It must be borne in mind, that the
bill is not filed to recover back money paid. The amount
that has been paid, whether the excess of interest would con-
stitute usury or not, must be appropriated to the principal
and lawful interest. 1 Leigh, 453 ; 7 Monroe, 596.
The over-charge of interest, which is the foundation of the
complainant's right to relief, adheres to the debt, as long as
it is in existence, and the payment of a portion of the debt,
which the law will apply to the extinguishment of the prin-
cipal and lawful interest, will not and cannot take away this
right to relief. The statute of limitations cannot, therefore,
have any influence on the question.
It is again said, that the bill is defective, in not offering to
pay the amount actually due, and lawful interest. The bill
recognizes the liability of the complainant to pay the amount
actually due, and lawful interest, and the complainant sub-
mits to pay this sum, in such manner as the court shall direct.
This we think is a sufficient offer to pay, if the gravamen of
the bill had been to obtain relief against a debt alledged to
be usurious. The reason why it is necessary, in a bill seek-
ing relief against usury, to offer to pay the amount actually
due, is, that the court will not interfere, unless the complain-
ant will either pay, or submit, that a decree be rendered
against him for the principal and lawful interest, and the
court has not the power to render a decree against him, on
JUNE TERM, 1848. 61
Branch Bank at Mobile v. Strother.
his own bill, unless he makes this offer by the bill. The
complainant submits in his bill, to pay the amount actually
due, in such manner as the court shall direct ; he invests the
court with jurisdiction to render a decree against him for the
proper amount, as fully as if he had offered in so many words
to pay the amount actually due.
Nor is there any available objection to the decree, that the
reference to the master was prematurely made. The usual
practice is, to settle the equities between the parties, before
a reference is ordered to state the accounts between them.
But if the final decree is in accordance with the equity of the
case, as made by the bill, answer and proof, it cannot be re-
versed, whether a reference was prematurely made, or whe-
ther one was made at all or not ; for no one can complain of
an error, or an irregularity, unless such error, or irregularity,
is injurious to his rights.
The report of the master is not objected to, as erroneous in
calculation. If we were to reverse the decree, that a new
reference might be ordered, the report must be the same in
amount, and the final decree the same. This view shows,
that there is no error that should reverse the decree, growing
out of the order of reference, and the master's report. The
magnitude of this case, has induced us to examine all the
questions presented, and which were necessarily involved in
coming to a conclusion deliberately, and the result of our
opinion is, that the decree of the chancellor must be affirmed.
COLLIER, C. J. I concur in affirming the decree of
the chancellor, and acquiesce in the argument of my brother
DARGAN, as to the frame of the bill, and the proceedings un-
der it. Upon the main question in the cause, I am of opinion
that the interest should not have been received by the bank
atone time, for more than one year in advance, and that the
complainant is entitled to the relief he prays, at least to the
extent to which it has been accorded by the chancellor. I
have not examined the data of my brother, founded upon
arithmetical calculations ; consequently neither assent to, nor
dissent from them. My opinion is restricted to the points
which I have here stated.
62 ALABAMA.
Hazzard v. Shelton.
HAZZARD v. SHELTON.
1. Where the holder declares upon one of a set of exchange, it is not ne-
cessary to account for the non-production of the rest ; any ground of de-
fence which may arise in reference to another of the set, it devolves on
the defendant to make.
2. An allegation in a declaration, " that the notary, at, &fc. aforesaid, made
diligent search, and inquiry for the said acceptor," is a sufficient allega-
tion, that inquiry and search was made in Mobile, it having been previ-
ously alledged, that the bill was directed to Charles Byram, Esq. Mobile.
Error to the Circuit Court of Pickens. Before the Hon. S.
Chapman.
ASSUMPSIT, by the plaintiff in error, as indorsee of a bill of
exchange, drawn by the defendant in error, (and one Wight-
man,) indorsed to the plaintiff by Reese & Heylin, and ac-
cepted by Charles Byram. In the declaration, the bill is de-
scribed as their second of exchange, (first of the same tenor
and date unpaid ;) and that the bill was directed to Charles
Byram, Esq. at Mobile, and by him accepted.
The dishonor and protest of the bill are thus stated :
" When said bill became due and payable, to wit, at, $*c.
Sidney J. Douglass, notary public, at the request of the said
plaintiff, with said bill in hand, did make diligent search and
inquiry for the said acceptor, said Charles Byram, Esq. in or-
der to demand payment of said bill, but could not find him,
or find any one authorized to pay said bill, said notary pub-
lic did, at the request of the said plaintiff, then and there
protest," $*c.
There is no allegation in reference to the first of the set.
The defendant demurred to the declaration, which was
sustained by the court, and judgment final rendered for the
defendant.
This is now assigned as error.
PECK, for plaintiff in error, cited 1 Saunders on P. & E.
JUNE TERM, 1848. 63
Hazzard v. Shelton.
264-5 j Downs & Co. v. Church, 13 Peters, 205 ; Taylor v.
Branch, 1 S. & P. 250.
HUNTINGTON, contra.
1. The practice in pleading, whereby the first of exchange
only is noticed, when action is brought upon it, does not ap-
ply to cases when the action is brought upon the second ; in
these latter the first must be vouched in the declaration, or its
absence (as by lessor otherwise) accounted for.
2. The declaration should have alledged that search was
made for Byram, (the acceptor,) either in Mobile, or else in
the last place of his residence.
COLLIER, C. J. It is common, and the practice is of
long standing, for the drawer to make and deliver to the
payee several parts, usually designated a set of the same bills
of exchange, each one of which states upon its face, that ei-
ther part of the set being paid, the bill is to be considered dis-
charged. A bill is thus drawn to avoid delays and inconve-
niences, which might otherwise arise from its loss or miscar-
riage, and also to enable the holder to transmit the same by
different conveyances to the drawee, so as to insure the most
prompt and speedy presentment for acceptance and payment.
Chitty on Bills, 9 Am. ed. 175-6 ; Story on Bills, 66, 67.
The bonajidc holder of any one of the set, if accepted, it is
said may recover the amount from the acceptor, who would
not be bound to accept any other of the set, which was held
by another person, although he might be the first holder. So
payment to the holder of one part, will be a complete dis-
charge of the acceptor as to all the other parts. Id. 176 ; Id.
226. If one of the parts has been accepted, the payment
of another unaccepted part will not liberate the acceptor from
liability to pay the holder of the accepted part, and such ac-
ceptor may therefore refuse to pay the bearer of the unac-
cepted part, and may compel him, if he suggests that he has
lost the accepted part, to find sureties against his liability to
pay the accepted part. See Wells v. Whitehead, 15 Wend.
Rep. 627 , Chit, on Bills, supra. And it would seem to
have been held, that a person to whom any part of the set is
first transferred, acquires a property in all the other parts,
64 ALABAMA.
Hazzard v. Shelton.
and may maintain trover even against a bona fide holder,
who subsequently, by transfer or otherwise, gets possession
of another part of the set. Holdsworth v. Hunter, 10 Barnw.
8f C. Rep. 449 ; Perriera v. Jopp, Id. 450, note, a. It is said
by Mr. Starkie, in his Treatise on the Law of Evidence, (2
vol. 228, 1 ed.) that in an action against the acceptor upon a
bill drawn in sets, the different parts of the set must be pro-
duced ; but the learned author cites no authority for the po-
sition. Chancellor Kent says, " If several parts, as is usual,
of a bill of exchange, be drawn, they all contain a condition
to be paid, provided the others remain unpaid, and they col-
lectively amount to one bill, and a payment to the holder of
either is good, and a payment of one of a set, is payment of
the whole. The drawer or indorser to be charged on non-
acceptance, or non-payment, is entitled to call for the pro-
test, and the identical bill, or member of the set protested, be-
fore he is bound to pay ; and it would be sufficient to pro-
duce it at the trial, or account for its absence. His rights at-
tach to the bill that has been dishonored, and he is entitled
to call for it. He may want it for his own indemnity, and
without it he might be exposed to claims from some bona
fide holder, or person who had paid it supra protest for his
honor." 3 Kent's Com. 75-6, 1 ed.; Powell v. Roach, 6
Esp. R. 76 ; Ken worthy v. Hopkins, 1 Johns. Ca. 107 ; Dur-
kin v. Cranston, 7 Johns. R. 442 ; Ingraham v. Gibbs, 2 Dal.
Rep. 134. See Usher's Ex'r v. Gaither's Ex'rs, 2 H. & Mc-
Hen. Rep. 457.
In Downes & Co. v. Church, 13 Pet. Rep. 205, it was de-
cided, that where the holder of one of a set of exchange,
which has been protested, and due notice thereof given to
the indorser, brings an action thereon against the indorser,
and upon the trial produces the bill to which the protest is
attached, it is not incumbent upon him to produce or account
for the non-production of the other parts of the set. That
it is not necessary for each part of the set to be presented for
acceptance before the right of action accrues. If one of the
other parts has been accepted or paid ; or presented at an ear-
lier time and dishonored, and due notice not given thereof;
or if some other person is the holder, and has given notice
of his title to the party sued ; these are matters of defence
65
which the indorser may establish. The ,law will not pre-
sume that the other bills of the set have been negotiated to
other persons, merely because they are not produced. Nor
can the indorser be prejudiced by their non-production ; for
if he pays the bill without notice of any superior adverse
claim, under a negotiation of another of the set to a third per-
son, he will be discharged from liability. See Posey and
Coffee v. The Decatur Bank, 12 Ala. Rep. 802.
In the case at bar, it is inferable from the number declared
on, that the bill was drawn in a set of two parts, and that
each was a counterpart of the other, save that one was called
the " first," and the other the "second of exchange." Each
part requests the drawee to pay it, if the other is " unpaid,"
and is equivalent to a direction to pay it only in that event.
The payment of one part then, according to the literal im-
port of the paper, is a complete compliance with the request
of the drawer, and if the drawee has not accepted the other
part, he is under no obligation either to accept or pay it. If
he is in any manner chargeable upon it, or to some other per-
son than the plaintiff, it devolves upon him to prove it, as a
ground of defence, and the holder need not negative by proof
the existence of such a state of facts.
This argument is not inappropriate to the case of a drawer
when sued for the default of the drawee. If he pays the
accepted part without notice of the adverse claim of some
third person, under another of the set, he cannot be charged
a second time upon the latter. Here the holder of the ac-
cepted number is asking a judgment upon it. The payment
of it, we have seen, would be proper, and operate a discharge
of the liability indicated by the entire set ; and the authori-
ties cited are direct to establish, that if a demand of payment
is properly shown or excused, then he is entitled to recover.
It is distinctly alledged, that on a specific day, which was
the third day of grace, "at, &c., aforesaid," that is, at Mobile,
where the bill was payable, the notary public, with bill in
hand, did make diligent search and inquiry for the acceptor,
and not being able to find either him, or any one who was
authorized to pay the same for him, did, at the request of
thr holder, protest the same ; of all which, afterwards, on
Vol. 15 -9
66 ALABAMA.
Mock v. King, garnishee.
the same day, the drawers had notice. True it is not stated
in totidem verbis that search and inquiry was made for the
acceptor in Mobile, yet if it be necessary to particularize the
place where search was made, we, think this is sufficiently
done by the terms " at, $*c., aforesaid," which refer back to
what precedes, and makes all sufficiently certain. Such is
certainly the case where we do not recognize special demur-
rers. 1 Saund. PI. fy Ev. 264-5 ; Taylor v. Branch, 1 Stew.
& P. Rep. 249 ; Kennon v. McRae, 7 Port. Rep. 175. This
view answers the objections to the declaration it follows,
that the demurrer was improperly sustained. The judgment
is therefore reversed, and the cause remanded.
MOCK v. KING, GARNISHEE.
i
1. If a plaintiff in attachment, after a garnishee has answered, disclosing the
fact, that the demand sought to be condemned has been transferred, suf-
fers several terms to elapse without taking the proper steps to bring the
transferee into court, to contest with him the validity of the transfer, it is
not error in the court to discharge the garnishee.
2. The undivided interest of one of several distributees of an'estate, in the
hands of an administrator de bonis non, &c., is not subject to the process
of garnishment
Error to the County Court of Lowndes. Before Hon. E.
H. Cooke, County Judge.
IN this case, the facts appear fully in the opinion of the
court.
J. M. HARDY, for plaintiff in error.
T. H. WATTS, contra.
CHILTON, J. The plaintiff in eror having sued out an
attachment before a justice of the peace, returnable to the
JUNE TERM, 1848. 67
Mock v. King, garnishee.
county court of Lovvndes county, against the estate of Bow-
lin Smith, the sheriff indorsed thereupon " executed by sum-
moning O. P. King, as gamishee, Dec'r. 1, 1S46." At the
December term, 1846, the gamishee filed his answer, and
the cause was continued for further answer, and it was or-
dered, that notice issue to John Steel and P. T. Harris, com-
missioner in bankruptcy, to contest the validity of the trans-
fer of the defendant's interest, as represented in the garni-
shee's answer.
At the fall term, 1848, to which the cause had been con-
tinued, the record recites, that the gamishee appeared, and
having answered, that he held certain property in his hands as
administrator de bonis non cum testamcnto annexo of the es-
tate of Jeremiah Smith, deceased, which, by the provisions
of the will, was to be equally divided among six heirs, when
the youngest should attain the age of twenty-one years, (to
which age the youngest heir had attained when the garnish-
ment was executed upon the defendant in error.) That said
estate consisted of land and slaves, besides other personal
property, amounting in value to twenty thousand dollars, and
which had never been divided. That said Bolin Smith
was one of the heirs of said Jeremiah Smith. That said gar-
nishee had seen on record in Autauga county, a transfer by
said Bolin Smith to one John Steel, of his interest in said
estate, and that he had heard both Smith and Steel say, said
transfer had been made to secure Steel against liability for
said Smith, as his surety upon his bond as executor of Jere-
miah Smith's estate. That Smith informed the gamishee,
if Steel lost nothing by his suretyship, the said property
would be his, (Smith's.) The gamishee further answered,
after notice, that he had seen from the records of the orphans'
court of Autauga, an official statement by said Bolin Smith,
as executor of J. Smith, by which a balance is certified in.
favor of said Bolin, of $2,351 99, by the judge of the orphans'
court of Autauga county ; whereupon the plaintiff asked for
a judgment against the gamishee on his answer filed, which
motion was overruled by the court. The plaintiff then
prayed a continuance, and that notice issue to John Steel to
contest his claim, which was also refused, and judgment was
ALABAMA.
Mock v. Kintf, garnishee.
entered discharging the garnishee, to revise which the cause
is brought to this court.
1. it is certainly proper, in ordinary cases, when a garni-
shee answers to an indebtedness, but alledges notice of a
transfer to a third person, for the court to continue the cause,
and order a notice to issue to the transferee, that he may
come in and contest with the plaintiff his right to the fund,
&c. This is required by the statute. Clay's Dig. 63, 40.
But it is the duty of the plaintiff to proceed with proper dili-
gence in bringing such transferee before the court. If he
neglect to have such notice issued until the several terms af-
ter the answer of the garnishee, have elapsed, the court may,
in the exercise of the discretion which is vested in the judge
over the subject of continuances, refuse to grant a continu-
ance of the cause, and may discharge the garnishee, if his an-
swer does not warrant a judgment against him. In this case,
the garnishee was summoned in December, 1846, and short-
ly thereafter answered. At the first term the cause was con-
tinued for further answer, and notice to issue to the trans-
feree of the property in the hands of the garnishee. At the
two succeeding terms no steps whatever were taken, but
general continuances were entered, and at the fourth term
the parties appear, and the plaintiff moved for judgment a-
gainst the garnishee. Failing in his motion, he asked a
continuance, and that notice issue to the same transferee for
whom a previous notice had been awarded. We think the
court very properly refused to keep the garnishee longer be-
fore it, as it was the duty of the plaintiff to have used pro-
per diligence in the prosecution of the former proceeding or-
dered against Steel, the transferee.
It is very certain that the answer of the garnishee did not
warrant a judgment against the defendant in error. Aside
from the objection, that the interest which Doling Smith
had in the property, had been conveyed to Steel, it appears
that the garnishee holds the property as assets of the estate
of Jeremiah Smith in his hands as administrator de bonis non,
&c. That said property has not been distributed, but re-
mains undivided, said Bolin being one of six heirs who are
to share it under the will of Jeremiah Smith. The adminis-
trator denies his authority to hold the property from the law.
JUNE TERM, 1848. 69
Patton v. England.
He is amenable to the orphans' court which appointed him,
for the faithful performance of the duties imposed on him in
virtue of his office. He must pay the debts of the deceased,
and have the property forthcoming for distribution when he
is required by law. If property thus held were liable to be
seized and sold upon proceedings against those who may be
entitled to distribution, much inconvenience and confusion
would result, and embarrassment be experienced in the set-
tlement of estates. Besides, no security would be afforded
those creditors who might remain unpaid, as in the event the
property is liable to be seized by attachment against the dis-
tributees, no refunding bond could be required. Other rea-
sons might be urged why the property of the legatee, before
distribution should not be subject to attachment at the suit
of his creditor. A posterior will may be established post-
humous child born the will which has been probated may
be set aside perhaps these and the like considerations have
led my mind to the conclusion, that the administrator de bo-
nis non with the will annexed, is not liable with respect to the
unadministered assets of the estate in his hands, which may
remain to be distributed to the creditors of the distributee by
process of garnishment. See Brooks v. Cook & Barrett, 8
Mass. Rep. 246 ; Barnes v. Treat <fc Allen, 7 Mass. R. 271.
It results from what we have said, that there is no error,
and the judgment is consequently affirmed.
PATTON v. ENGLAND.
1. Neither fraud nor failure of consideration is a good defence at law to a
note given for the purchase money of land, when the vendee has accepted
from the vendor a deed with covenant af warranty.
Error to the Circuit Court of Cherokee, before the Hon. G.
D. Shortridge.
70 ALABAMA.
Patton v. England.
THIS was an action of assumpsit instituted by defendant
against plaintiff in error, to recover the amount of six promis-
sory notes, which had been given for the purchase money of
a tract of land. The case went to the jury on the plea of the
general issue, with leave to give in evidence any special
matter in bar. The bill of exceptions discloses the follow-
ing facts : During the negotiation preceding the purchase,
the defendant pointed out to plaintiff the corner posts and
lines of the land, and represented, although he knew such
was not the truth, that the tract of land included a certain
dwelling and outhouses, with a mill and water fall. On the
conclusion of the purchase, the plaintiff executed the notes
sued on, and the defendant a bond for titles, and immediate-
ly afterwards the plaintiff went into possession of the dwel-
ling house, mills. &c., and has continued in possession ever
since. The tract of land did not include those improvements,
but they were on another lot of land, and the tract sold by
defendant to plaintiff was almost valueless without them.
Subsequently to the sale, and before the institution of the
suit, the plaintiff accepted a deed, with covenant of warran-
ty from defendant for the land embraced in the bond.
The court instructed the jury that if they believed all the
evidence, they must find in favor of the plaintiff below for
the full amount of the notes. To this charge the defendant
below excepted, and now assigns it as error.
WALKER and RICE, for plaintiff in error.
1. When there is a fraud in the sale of land, and by fraud
the vendee is induced to give his notes, and to accept a bond
and deed, and upon the discovery of the fraud, the vendee
offers to rescind the contract, and the land mentioned in the
bond and deed is worthless, and the vendee never had pos-
session of it, but was in possession of other land which was
falsely and fraudulently represented to be the land men-
tioned in the deed and bond, and the vendee promptly offers
to abandon the possession of this, and to give up the bond
and deed, the vendee may defend at law upon these facts,
when sued upon the notes.
2. An offer to rescind, although not accepted, is in its ef-
JUNE TERM, 1848. 71
Patton v. England.
feet upon the remedy, equivalent to a rescission. Clements v.
Loggins, 2 Ala. 514.
3. The land conveyed being totally worthless, distinguish-
es this case from all others decided by this court, and renders
a resort to chancery unnecessary. If the land conveyed had
been of any value, then a resort to chancery might be ne-
cessary.
4. The vendee never had possession of the land conveyed,
and the contract being rescinded by his offer to rescind, the
vendor's deed will be rendered void, or it will give the ven-
dor a right to call on the vendee for a re-conveyance.
5. The sale was effected by the grossest fraud on the part
of plaintiff, who falsely represented the mills and other im-
provements to have been on the land conveyed, when he
knew they were not. The land conveyed was absolutely
worthless, and was never in the actual possession of the pur-
chaser within a reasonable time, and as soon as he discovered
the fraud, the purchaser offered to rescind. If in such case
as this the purchaser cannot defend at law, there is no con-
ceivable case where he can defend. In this case there was
both fraud and a total failure of consideration. No verdict
could have been properly authorized by the court, except for
plaintiff's work and labor, and for the mill irons. Knight v.
Turner's Ex'rs, 11 Ala. 639.
L. E. PAKSONS, contra.
1. The sole question in this case is, whether a vendee can
defend an action for the purchase money, where he has ac-
cepted a deed and gone into, and still retains the possession
of the property purchased it being land and mills. Chris-
tian v. Scott, 1 Stew. 490 ; Clements v. Loggins, 1 Ala. 622;
Dunn, use, &c. v. White, et al. Ib. 645 ; Duncan v. Jeter, 5
Ib. 604 ; Larkin v. Bank, 4 Porter, 434 ; Young v. Harris, 2
Ala. 108 ; Camp v. Camp, 2 Ib. 632 ; Starkie v. Hill, 6 Ib.
785 ; Knight v. Turner, 11 Ib. 636 ; 3 Ib. 406 ; 9 Ib. 776.
CHILTON, J. This case comes substantially within the
influence of several decisions of this court, and which we
must regard as decisive of it. Although the mills and wa-
ter fall, as well as the residence, are not on the land sold, as
72 ALABAMA.
The Governor, use, &c. v. Gordon.
they were falsely and fraudulently represented to be by the
defendant in error, sttll the purchaser received the posses-
sion of them, and derived some benefit under the contract,
and has also accepted a deed with general warranty of title.
The cases of Cullumv. Branch Bank of Mobile, 4 Ala. Rep.
21, and Stark et al. v. Hill, 6 Ib. 785, determine, that if the
purchaser accept a deed with warranty, he cannot set up ei-
ther fraud, or failure of consideration, at law, as a defence to
an action by the vendor upon the notes given for the pur-
chase money of land. With these decisions we are content.
If the object be to rescind the contract, most certainly the
court of equity is the most appropriate forum, as in that court
alone can complete justice be done to all the parties. See
cases on defendant's brief.
There is no error in the record, and the judgment is con-
sequently affirmed.
THE GOVERNOR, USE, &c. v. GORDON.
1. A notary public, who receives his appointment and commission from the
governor of the State, on the recommendation of the judge of the county
court, is a public officer of the county.
2. Where a notary public fails to give to the indorser of a negotiable note
the notice requisite to charge him, the statute of limitations of six years
(Clay's Dig. 329, 90,) commences to run, in favor of the sureties on his
official bond, from the date of the default, and not from the time of its dis-
covery, or the ascertainment of the damage, by the injured party.
Error to the Circuit Court of Mobile. Before the Hon.
John Bragg.
THIS was an action of debt, instituted by the plaintiff
against the defendant in error, as the surety of one Marsten,
on a bond executed to the Governor of Alabama, for the faith-
JUNE TERM, 1848. 73
The Governor, use, &c. v. Gordon.
ful discharge of his duties as a notary public. The writ was
issued on the 2d November, 1846, and the case was submit-
ted to the court below on the following agreed state of facts :
On the 4th January, 1839, a promissory note for $741, made
by Jeremiah Findley and John Gody, in favor of, and in-
dorsed by Thomas G. Newbold and S. Andrews, negotiable
and payable at the Bank of Mobile, was delivered by said
bank to said Marsten, who was then a regularly appointed,
qualified and commissioned notary public for the county of
Mobile, for the purpose of demanding payment, giving notice
of non-payment to the indorsers, and protesting : said notary
protested the note for non-payment, and in his protest stated
that he had only notified the indorser, Newbold, by leaving
a notice at his office in Mobile : on the 14th April, 1840, the
bank sued Newbold, and at the trial in 1841, was defeated
in the suit, by Newbold setting up as a defence the failure of
said notary to give him notice, and proving that on the 4th
January, 1839, he had no office in Mobile : up to this time
the bank did not know that the statement in the protest of
said notary was untrue : in April, 1842, the bank sued said
Marsten, and recovered a judgment against him : Newbold
was the only solvent party on the note, and has been released
from liability by the default of the notary : a demand was
made of the defendant Gordon before this suit was instituted.
The principal defence relied on was the statute of limita-
tions of six years, as applicable to the sureties on the bonds
of public officers.
The court gave judgment for the defendant, from which
the plaintiff in error appealed, and he now assigns said judg-
ment as error.
PHILLIPS, for appellant.
In cases of concurrent jurisdiction, courts of equity are
governed by the statute of limitations they do not decide in
analogy to the law, but in obedience to it ; the decisions in
those courts, therefore, upon the statute, are authority in the
courts of common law. Hovenden v. Ld. Amersley, 2 Scho.
&, Lef. 007, 630.
As applied to officers, the statute of limitations begins to
Vol. 1510
74 ALABAMA.
The Governor, use, &c. v. Gordon.
run from the time of their return, or when by law it was
their duty to make a return. Belts v. Norris, 21 Maine,
324 ; West et al. v. Rice, 9 Mete. 568 ; Mather v. Greene,
17 Mass. 60. But in cases of fraud, the statute does not run
until the discovery of it. Harrell v. Kelly, 2 McCord, 428;
Rice v. White, 4 Leigh, 483; Mass. Turnpike v. Field, 3
Mass. 204; Sherwood v. Sutton, 5 Mason, 145; Raymond
v. Simison, 4 Blackf. 84; Betts v. Norris, 21 Maine, 324;
see dissenting opinion of Shipley, J.; 6 Bac. Ab. 386 ; Bal-
lentyne on Lira. 96. So in cases when a demand was neces-
sary, the statute would commence to run from the time of
demand. Harriman v. Wilkins, 2 App. 93 ; Hutchens v.
Oilman, 9 N. Hamp. 359.
And in case of a deposit in bank which suspended pay-
ment, the statute did not run until the depositor had know-
ledge of the suspension. Planters' Bank v. Farmers' Bank,
8 Gill & J. 458 ; Union Bank v. Planters' Bank, 9 Id. 439.
The same rule, as applied to officers, has also been applied
by this court to attorneys, that the statute would run from
the time of the liability incurred by not bringing suit to the
first term. See Mardis v. Shackleford, 4 Ala/ R. 493. But
if the attorney should inform his client that he had brought
suit to the first term, and the client trusts to the representa-
tion, would the attorney be permitted to plead the statute, to
a suit brought against him for the damage resulting from his
not suing to the first term ?
In the case of the Bank of Mobile v. Huggins's adm'r, this
court decided, that the one issued to give notice to the in-
dorsers did not make the agent liable without a special dam-
age had accrued. No action therefore accrued against the
notary, until the indorser took advantage of his want of no-
tice, and the other parties to the note were shown to be in-
solvent.
This is the case of a party not only not discovering the
fraud in time, but prevented from the discovery by the act
of the party.
The fact that the words of the statute do not contain the
exception of fraud in its terms, is no stronger an argument as
applicable to this statute, than to the general statute of limi-
tations.
JUNE TERM, 1848. 75
The Governor, use, &c. v. Gordon.
J. A. CAMPBELL, contra. A notary public is an officer
within the meaning of the statute entitled "an act to limit
actions against securities of officers." Clay's Dig. 329, 90.
A notary public is appointed by public authority; his fees are
regulated by statute, in the same class of officers, as those
embraced in the statute above cited. Clay's Dig. 236. He
gives a bond, and for his acts of misfeasance or malfeasance,
he is liable on it " in like manner and with like effect," as
sheriffs or coroners are on their bonds for the faithful perform-
ance of their duties. Clay's Dig. 379, 7.
2. The plain language of the statute fixes the date of the
liability of the sureties. The action must be commenced
within six years " next after the commission of the act com-
plained of." The statute does not designate the time of the
discovery of the default, as that from which the time limited
by the statute is to be computed. It presupposes that every
default may be discovered within six years, and that an ac-
tion may be commenced in that time. It terminates the lia-
bility of the sureties, after six years have expired from the
default. The question then is, when did the default of tho
notary occur ? The answer is, when he made his false return
to the bank, that he had given notice. Since that time, he
has exercised no control over the subject. Utica B'k v. Child,
6 Cowen, 238 ; Mardis, adm'r, v. Shackleford, 4 Ala. 495 j
Governor, use. &c. v. Stonum, 11 Id. 679.
CHILTON, J. A notary public who receives his appoint-
ment and commission from the governor of the State, upon,
the recommendation of the judge of the county court, must
be regarded as a public officer of the county. The statute
requires him to enter into bond, with sufficient security, to
be approved of by the judge of the county court, in the sum
of $2,000, payable to the governor and his successors in of-
fice, for the faithful performance of the duties of his office.
Clay's Dig. 379, $ 7. By the first section of the act of 1832,
(Clay's Dig. 329, 90.) it is provided that "no action, suit
or motion, shall be maintained against the surety or sureties
of any sheriff, constable, or other public officer of this State,
for any malfeasance, misfeasance, or other cause whatsoever,
hereafter committed, unless the same be commenced or pro-
76 ALABAMA.
The Governor, use, &c. v. Gordon.
secuted within six years next after the commission of the act
complained of ; or if the claim be in favor of an infant, or
person non compos mentis, or other person, disabled by law
from bringing suit, then within three years after such disa-
bility to sue, shall cease to exist," &c. By the act of 1819,
(Dig. 379, $ 7) the bond of the notary is required to be record-
ed in the county where he resides, " and may be sued on by
any party or parties injured, in like manner and with like ef-
fect, as bonds given by sheriffs and coroners, for the faithful
execution of the duties of their respective offices." We
think, from the language of these statutes, it is most manifest
that a notary public is a public officer within the meaning of
the first section of the act of 1832, arid that his securities are
not liable on his bond for his malfeasance, misfeasance, or
other improper conduct, unless suit was commenced against
them " within six years next after the commission of the act
complained of."
It is insisted, however, by the counsel for the appellant,
that the cause of action could not be said to have accrued un-
til Newbold availed himself of the want of notice ; as, until
then, no injury had resulted to the bank from the failure of
Marsten to give the required notice. And it is further in-
sisted, that the circumstances make out a case of fraud
against the notary, against which the statute of limitations
does not begin to run until the fraud is discovered. It might
be a sufficient answer to both these positions to say, the act
complained of was the failure of the officer to give notice to
Newbold, the indorser, and in certifying in the protest that
such notice had been left at his office in Mobile, when in fact
he had no office in the city. Since that time, the officer has
done no act in regard to the note, for which his sureties can
be held responsible. Now, is it permissible for the court,
since the statute, in plain and unequivocal terms, fixes upon
the date of the act complained of for the commencement of
the limitation, to fix upon another and different period? It
occurs to me we should by the construction contended for,
virtually annul the statute. If the statute does not begin to
run until Newbold availed himself of the want of notice, then
the bank would have the right to prolong the liability of the
surety to any period short of twelve years from the maturity
JUNE TERM, 1848. 77
The Governor, use, &c. v. Gordon.
of the note. Or, if Newbold, when sued, chose to waive the
statute of limitations, and to rely upon the defence of want
of notice, then the sureties' liability would be prolonged to
an indefinite period at the pleasure of the plaintiff. Such
cannot be the correct construction of a statute evidently de-
signed for the repose of the officer's sureties, and to rid them
of responsibilities after the expiration of six years from the
happening of the cause of complaint. The legislature very
correctly concluded, that after the lapse of so many years, it
would be difficult, if not impossible, in many cases, for the se-
curities to find proof to explain the various acts of their prin-
cipal, for which they might be sued, so as to exonerate them-
selves from liability. Besides, had the legislature intended
to date the commencement of the statute of limitation from
the discovery of the default, or from the time that the party
ascertained such default would prove injurious to him, some
such provision would doubtless have been inserted. But, al-
though there is a saving as to infants, non compotes, and per-
sons who are disabled by law from bringing suits, there is
none as to the case made by the record before us. This,
though not by any means conclusive, is at least persuasive to
show, that the construction contended for is erroneous. A
question having a strong analogy to the one before us, was
decided by this court in The Governor, use, &c. v. Stonum,
adm'r, 11 Ala. Rep. 679. In that case, a sheriff having se-
veral executions in his hands, collected the money, and re-
turned the writs, and shortly afterwards died. In about nine
years after the return, a demand was made of his administra-
tor for the money. The question was, whether the statute
which we have above copied, commenced running from the
time of the demand. The court held it did not, and say,
that it commenced in favor of the surety when his responsi-
bility was conclusively ascertained. It is there said that any
other construction of the statute would make it perfectly il-
lusory, as the surety has no means of ascertaining whether
the money has been paid over or not, and cannot therefore
protect himself by insisting on a suit being brought, or by
discharging it himself, and resorting to his principal. In
Mardis, adm'r, v. Shackleford, 4 Ala. Rep. 506, it is said :
" It may he regarded as settled law, that the statute began to
78 ALABAMA.
The Governor, use, &c. v. Gordon.
run from the time the intestate was chargeable with negli-
gence ; for then, the right of action accrued in favor of the
plaintiff." Many cases might be cited to show that the stat-
ute begins to run from the time of the negligence, and not
from the ascertainment of the injury. See Wilcox v. Plu-
mer, 4 Peters's Rep. 172; West v. Rice, 9 Mete. Rep. 564;
Belts v. Norris, 8 Shep. Rep. 314. In Kerns v. Schoonma-
ker, 4 Ham. 331, it was held, that the statute begins to run
as soon as the injurious act complained of is perpetrated, al-
though the actual injury is subsequent, and could not be
known, or immediately operate. See also Miller v. Adams,
16 Mass. Rep. 456; 12 Id. 127; 17 Id. 60. In the Presi-
dent, &c. of the Bank of Utica v. Child, 6 Cow. Rep. 238,
the precise point here involved came before the court, and it
was ruled that the statute commenced running from the time
the notary failed to give the notice required to fix the liabil-
ity of the indorser, and this, although the injury was ascer-
tained by suit and judgment within the period of six years.
So that, leaving out of view the peculiar phraseology of our
statute, we think the law is clear, that the general statute of
limitations, if it were six years, would embrace the case at
bar. That nominal damages could alone be received in
some cases, is no objection to dating the statute from the
time of the default. See Mardis's adrrrr v. Shackleford, su~
pra. The party who apprehends the damage must quicken
his diligence to ascertain it, or rely upon his suit brought
within the six years, to recover for the probable injury. 4
Cow. Rep. 245. No question as to the fraudulent conceal-
ment of the cause of action by the notary from the plaintiff
arises in this case. There is no evidence of such fraud, and
we are not to presume it, when the facts may consist with
honesty of intention ; non constat, but that the notary sup-
posed he had given the notice by leaving it at Newbold's of-
fice. He may be liable for want of that diligence which the
law requires of him in ascertaining the fact of the indorser's
residence, and no question of fraud be involved. We there-
fore defer going into an examination of the many conflicting
authorities upon the point, whether a fraudulent concealment
would avoid the statute until a case should arise necessarily
involving it. See Smith v. Bishop, 9 Verm. Rep. 110; Allen
JUNE TERM, 1848. 79
Stephens et al. v. Norris, Stodder & Co.
v. Mille, 17 Wend. Rep. 202 ; Fee v. Fee, 10 Ohio Rep.
469 ; Troup v. Smith's ex'rs, 20 Johns. Rep. 33 ; Ib. 277;
Abell v. Harris, 1 Gill & Johns. Rep. 367; Baines v. Wil-
liams, 3 Iredell's Rep. 481; Martin & Yerg. Rep. 361; Miles
v. Berry, 1 Hill's (So. Ca.) Rep. 296; contra, Doug. 664; 5
Mason's Cir. Ct. Rep. 449; 3 B. ^ A. 436; 3 B. & Bing.
73 ; 3 Don. & R. 330.
We think it is clear, that the plaintiff having failed to pro-
secute the security upon the bond for more than six years
from the commission of the notary's default, the statute ex-
empts the surety from liability, and that the court below pro-
perly gave judgment for the defendant.
The judgment is affirmed.
STEPHENS ET AL. v. NORRIS, STODDER & CO.
1. The circuit court has no power to direct an amendment of a judgment
nunc pro tune, after such judgment has been affirmed on certificate in the
supreme court ; and a writ of error will lie to this court, upon the judg-
ment of the court ordering such amendment.
2. An amendment of an error in the original judgment, cannot be made in
the supreme court
Error to the Circuit Court of Lowndes. Before the Hon.
E. Pickens.
COOK, for the plaintiff in error.
W. HUNTER, for defendant in error.
1. The circuit court had jurisdiction although its judg-
ment was merged in that of the supreme court, as is decided
in Wiswall v. Munroe, 4 Ala. 19. Yet it did not lose all pow-
er to correct its own entries. This was an affirmance on
certificate, and consequently this court has no record to a-
mend by ; and from the necessity of the case, the circuit
80 ALABAMA. __^__
Stephens et al. v. Nurri.s, Stodder & Co.
court in which the record remains, must make the amend-
ment. Besides, the statute says the clerk shall calculate the
judgment from the note. This cannot be done here. How-
can this court know but that there are payments indorsed.
See Clay's Dig. 325, $ 70.
2. But if the court had no jurisdiction, and the proceeding was
coram non judice, no writ of error will lie on its void order ;
and nothing can be done but dismiss the writ of error, ac-
cording to the decisions of this court.
But if the court should hold the circuit court had no juris-
diction, and its orders of amendment are void, then this court
is moved on the petitions and records herewith submitted, to
make the proper order for the amendment nunc pro tune.
CHILTON, J. The question is, whether the circuit court
had the power to allow an amendment of its previous judg-
ment, nunc pro tune, after such judgment had been affirmed
upon certificate in the supreme court.
In Wiswall v. Monroe, 4 Ala. Rep. 1 9, it was held, that
that when the judgment of the inferior court was supersed-
ed by a writ of error bond, and was affirmed by this court,
the effect of such affirmance was, to merge the judgment of
the inferior, in that of the supreme court ; and that an execu-
tion issued on the judgment of the inferior court, after its
affirmance, would be quashed. We are satisfied with this
construction of the act of 1826, and it follows, that as the
judgment of the circuit court was merged, sunk, by the judg-
ment of this court that no amendment could properly have been
made. We have been unable to find any authority which
will sustain the judgment nunc pro tune, and we think upon
principle, it is indefensible. We do not agree however
with the counsel for the defendants in error, that it is so ut-
terly void that no writ of error will lie. The court has ju-
risdiction over the subject of amendments, but has, as we
conceive, erroneously exercised it in rendering a judgment
against the plaintiffs in error. The judgment must therefore
be reversed.
A petition is filed in this court with the record, praying
that if the court should deem the correction of the judgment
in the circuit court irregular, that the correction may be
JUNE TERM, 1848. 81.
Evans v. The Bank of the State.
made in this court. This court doubtless has the power to
correct its own judgments nunc pro tune, so as to make
them conform to the truth of the case, but there must be
something to amend by. Here the judgment was affirmed
on certificate no record was filed, and the judgment ren-
dered by this court is in conformity with the certificate upon
which it is predicated. To receive the proof at this time,
that an error existed in the judgment of the circuit court,
which was amendable in that court, and which should have
been amended before the affirmance in this, and to grant the
relief prayed by the petition, would clearly involve the exer-
cise of original, not appellate jurisdiction. It has been the
uniform practice of this court to deny similar motions.
EVANS v. THE BANK OF THE STATE EL AL.
1. A sheriff, or his sureties, proceeded against under the act of 1826, may
insist on the fact of the receipt of the money being found by a jury ; but
if they appear, and make no objection, they will be considered as having
waived it
2. When the judgment entry recites, that proof was made, that the party
proceeded against, was surety of the sheriff when the money was collec-
ted, and received by him, this court will intend, that it was proved by the
production [of the sheriff's bond, on which he was surety, and that that
relation continued to exist, so as to embrace the period of default
3. The plaintiff is not confined to the proof of the demand, at the time stat-
ed in the notice. Proof of demand at any time after the receipt of the
money by the sheriff, and before the motion, will be sufficient.
Error to the County Court of Tuscaloosa.
The facts sufficiently appear in the opinion-
E. W. PECK, for the plaintiff in error.
Vol. 1511
82 ALABAMA.
Evans v. The Bank of the State.
P. & J. L. MARTIN, for defendant.
CHILTON, J. This was a motion at the instance of the
bank against David Chandler, late sheriff of Perry county,
and his securities in office, for failing to pay over, upon de-
mand, the sum of $540, alledged to have been collected by
him under, arid by virtue of an execution in favor of said
bank, against one Davis. Notice of the motion having been
served alone upon the plaintiff in error, a judgment was ren-
dered by the court, at the term indicated t by the notice, a-
gainst him, without the intervention of a jury.
It is insisted in this court that the county court erred in
rendering judgment without the finding of a jury. 2. That
the facts set forth in the judgment entry, do not warrant the
judgment, and that the court erred in rendering judgment up-
on them.
The judgment entry recites, that the parties came by their
attorneys, and the said bank moved for judgment against
said Evans, as one of the sureties of said Chandler, for the
failure of the latter, as sheriff of Perry county, to pay over
certain monies collected by him, on an execution described
in the notice, &c. And it appearing to the satisfaction of
the court, that the execution in favor of the President and
Directors, against Hugh Davis, in the said notice mentioned
and described, was properly issued on a judgment of this
court, and that it came duly to the hands of the said David
Chandler, as sheriff of the county of Perry, before the re-
return day thereof ; and it further appearing to the satisfac-
tion of the court, that the said Chandler as sheriff, as afore-
said, collected and received, upon said execution, the sum of
$540 ; and it further appearing, that a demand of the mo-
nies aforesaid was made of the said David Chandler, on the
31st day of July, 1846, by William Hawn, cashier of said
bank, and agent for the said plaintiff, and acting for them in
that behalf, in Perry county, and that the payment of said
monies was then refused by said Chandler ; and it further
appearing, that the said James G. Evans was security of the
said Chandler, as sheriff aforesaid, at the time the monies a-
foresaid were collected and received by said Chandler ; and
it also appearing, that said Evans has had more than three
JUNEJTERM, _1848., 83
. The Banlf of the State.
days notice of this motion, by notice duly executed and serv-
ed upon him him on the 28th day of November, 1846, and
the said Evans saying nothing in bar or preclusion, it is
therefore concluded by the court, that the plaintiff recover of
said Evans the sum of $540, the amount collected as afore-
said, and not paid over ; also, that he recover the further sum
of $454 50, as damages, being five per cent, per month, on
the amount of the execution, for sixteen months and twenty-
six days, that being the number of months and days which
have elapsed since the demand and refusal aforesaid, up to
this date, besides the costs in this behalf expended.
The general rule certainly requires, the record should show
affirmatively every fact necessary to sustain a summary judg-
ment, rendered in virtue of particular jurisdiction conferred
upon the court. Lyon v. Bank, 1 Stew. Rep. 442 ; Curry v.
The Bank of Mobile, 8 For. Rep. 360 ; Allums v. Hawly, 8
Ala. Rep. 584. In support of the objection, that the court
should have empannelled a jury to try the fact, whether the
money had been collected, we are referred by the counsel, to
Mason & Daniel v. Brash ier, 1 Ala. Rep. 635. That case
decides, that in a proceeding under the act of 1822, against
the sheriff for failing to pay over money collected by him,
(and which requires an issue to be made up and tried by a
jury, unless the receipt of the money appear of record, or by
some paper filed in the clerk's office,) the summary judgment
cannot be sustained without the verdict of a jury, unless the
record shows the receipt of the money, was proved by mat-
ter of record, in the court below, or some paper filed in the
clerk's office.
The act of 1826 makes no such requisition, but provides,
"that whenever any clerk, sheriff, or coroner, shall fail, or
refuse to pay over any money received, or collected by him,
upon any execution, on the application of the plaintiff, or
plaintiffs, his, her, or their attorney, or agent, it shall be law-
ful for the court, to which such execution shall be made re-
turnable, upon one day's notice being given to said clerk,
sheriff, or coroner, on motion of the plaintiff or plaintiffs in
execution, to render judgment against the clerk, sheriff, or
coroner so failing, or any, or either of them, for the amount
of money thus received, together with five percent upon the
84 ALABAMA.
Evans v. The Bank of the State.
amount of said execution, as damages, for each and every
month for which the said money shall have been detained,
after demand made, together with costs of suit. Clay's Dig.
218. It was said in the case of Mason & Daniel v. Brazier,
supra, that this act might be considered as superseding all
other acts upon the subject, did it not require one day's notice
to the clerk, sheriff, or coroner. In that case the sheriff had not
been notified, and the court for that reason say, the judgment
could not be supported under the act, having previously de-
cided, in Orr v. Duval, 1 Ala. Rep. 262, that under the act of
1826, the sheriff was a necessary party. The act of 1841,
remedies the defect in the act of 1826, and authorizes a judg-
ment against " such of the parties as service is effected on."
See Williamson and Daniel v. The Branch Bank at Mont-
gomery. 3 Ala. Rep. 504 ; Clay's Dig. 536, <> 14. The act
of 1S26, as we have seen, does not require the fact of the re-
ceipt of the money to be found by a jury. The court was
not bound mero motu to submit such issue to a jury, and
conceding that the defendant might insist on a jury trial,
there can be no doubt of his right to waive it. The record
in this case shows he was present by his attorney, and said
nothing in bar or preclusion of the motion for judgment a-
gainst him. We conclude therefore, there was no error in
the rendition of judgment by the court, without the finding
of a jury.
We think the objection, that it does not appear the defend-
ant below was security for Chandler when the default was
was made, cannot be sustained. The notice, which is re-
ferred to in the judgment entry, describes the said defendant,
as being one of the securities of Chandler. He appears and
makes no defence, and the judgment entry recites that proof
was made of his being security when the money was col-
lected, and received by the sheriff. We must intend that
this fact was proved by the legal evidence, the production
of the official bond of Chandler, on which Evans was bound
as surety. This fact being made affirmatively to appear, by
the production, &c. of the official bond of the sheriff, we
must intend, in the absence of all other proof, that the rela-
tion continued to exist, so as to embrace the period of de-
fault. The bank made out a prima facie case against the
JUNE TERM, 1848. 85
Andrews. Adm'r, v. Hall et al.
surety, and devolved upon him the necessity of showing he
had been discharged, if such were the fact, when the default
occurred. The continuance of the security's liability, the
fact having been shown to exist, and there being no counter-
vailing proof, is a presumption of law arising upon the record,
and which the judgment entry need not recite. As well
might the rule require the judgment entry to negative any
other matter of defence for example, that the security was
not an infant when he signed the bond was not forced to
sign it, &c., as, that he has never been discharged from it.
These are matters of defence, the onus of proof of which is
on the defendant. In the Branch Bank of Mobile v. Brough-
ton, 10 Ala. Rep. 148, it is said "if the sureties appear, and
do not put the fact of their suretyship in issue, it is an ad-
mission that they are properly charged as such."
The judgment entry distinctly avers, that the money was
demanded on the 3lst July, 1846, and although it may be
that this is a clerical misprision, we are not authorized by
the record so to regard it. The notice avers that the de-
mand was made one year previous to the time stated in the
judgment entry, but the plaintiff was not confined to proof
of demand at the time stated in the notice. It was sufficient
to show such demand, after the receipt of the money by the
sheriff, and before the motion. Spence et al. v. Rutledge,
adm'r, 11 Ala. Rep. 557.
Let the judgment as to the damages be corrected, and en-
tered for the proper amount, at the cost of the plaintiff in
error.
ANDREWS, .ADM'R, v. HALL ET AL.
1. A decree of an orphans' court, which ascertains the interest of the seve-
ral distributees of an estate, and directs their respestive distributive share*
86 ALABAMA.
Andrews, Adm'r, v. Hall et al.
to be set apart by commissioners, is such a final decree, as will autho-
rize the revision of it on error.
12. When in the distribution of an estate in the orphans' court, it is made to
appear, that an infant has been advanced, but not to the full amount of
what would be its distributive share, the guardian ad liiem of the infant,
with the concurrence of the court, has the power to elect, and to bring
such advancement into hotchpot
3. When advancements have]been made to distributees of an estate, in the
life time of the decedent, and, on distribution such advacements are
brought into hotchpot, the distributive share of the widow is not increas-
ed thereby, but must be carved alone out of the estate, of which the de-
cedent died possessed, without reference to the advancements.
4. The widow of a decedent is a competent witness in a controversy, in-
volving the amount of advancements for which each of the several distri-
butees is accountable.
Error to the Orphans' Court of Dallas. Before the Hon.
A. S. Saffold, Judge.
THIS case arose out of a petition filed by Warren B. An-
drews, administrator on the estate of Richard Hall, deceased,
setting forth that he had in his hands, as the property of said
estate, a number of slaves which were not needed for the
payment of debts, and praying a division of them among the
distributees. A guardian ad litem was appointed for William
A. Hall, an infant distributee. When the case came on to
be heard, it was made to appear to the court, that all the dis-
tributees, except Sarah Hall, the widow of the deceased, had,
in the lifetime of the said Richard Hall, either by themselves
or through those to whose distributive shares they had suc-
ceeded by right of representation, received advancements,
but that the advancement for which the infant distributee
was accountable, was less in amount than the distributive
share which he would be entitled to after such advancement
was brought into hotchpot. The guardian ad litem thereup-
on, under direction of the court, elected, on behalf of said in-
fant distributee, to bring his advancement into hotchpot, and
the other distributees who had been advanced, made the
same election for themselves. The court having ascertained
by evidence the advancement made to each distributee, pro-
ceeded to make the division, and decreed, among other things,
that the widow of the deceased should, in the first place, re-
JUNE TERM, 1848. 87
Andrews, Adm'r, v. Hall et al.
ceive one-fifth of the slaves, and then to the value of one-
fifth of the aggregate amount of the advancements out of the
remainder of them. In ascertaining the several advance-
ments, Sarah Hall, the widow of the deceased, was admitted
by the court as a witness.
The plaintiff now assigns as error
1. That the court permitted the gnardian ad litem to make
the election for the infant distributee.
2. The decree made in favor of Sarah Hall.
3. The admission of Sarah Hall as a witness.
Arid the defendants in error move at the same time to dis-
miss the writ of error.
WM. HUNTER, for plaintiff in error.
1. The question of fact is, did not the orphans' court fix
a lower value on William A. Hall's share than the evidence
warranted? There were but three witnesses, and two of
them set a much higher value and these two witnesses do
not give mere opinions, they state facts which show the real
value, independent of their opinions and they prove also,
what was the estimate of William A. Hall himself. Mrs.
Hall, the other witness, was incompetent, and she says she
does not know what was the market value of slaves.
2. The question of law is, whether the widow is entitled
to a distributive share of property brought into hotchpot.
These authorities are referred to, as showing that she is not
so entitled. Clay's Dig. 197, <> 25, 26; 2 Wms. on Ex'rs,
919; Kircudbright v. Kircudbright, 8 Ves. 51; Stearns v.
Stearns, 1 P. M. R. 157 ; Porter v. Collins, 7 Conn. 1 ; Law-
ton's case, 3 Dess. 199 ; Logan v. Logan, 13 Ala. 163.
3. As to the objection that this is not a final decree. 1.
Both an appeal and a writ are taken. 2. But a writ of error
would lie. Harrison, cxparte, 7 Ala. 736.
EVANS, contra.
1. The administrator cannot complain, that the infant,
Richard Hall, son of W. A. Hall, was allowed, under the cir-
cumstances, to bring into hotchpot the advancement receiv-
ed by his father in his lifetime. The child, in this case, be-
fore he can be admitted to his father's distributive share,
88 ALABAMA.
Andrews, Adm'r, v. Hall et al.
must bring the advancement of the father into hotchpot.
2 Wrns. on Ex'rs, 919. In this case, if no one can elect for
the infant, he will be utterly without remedy. The elec-
tion cannot prejudice the infant. He is not required to bring
back the identical property, but to have his share diminished
to the extent of the value of the advancement.
2. There could be no error in permitting Sarah Hall, the
widow, to testify. If she had no interest in the advance-
ment to be brought into hotchpot, she stood entirely indif-
ferent. It was a contest among her children, by which she
could be neither benefitted nor prejudiced. Besides, she
gave testimony only as to the value of one advancement,
(that in which the infant, Richard, was concerned,) and this
testimony was to reduce the value of the advancement, and
was so against her interest, if she had any.
3. If the question arising under the 4th assignment of er-
rors, has been concluded by the recent decision of this court,
(in manuscript,) it is not proposed to cite authorities or offer
argument on that point. But we insist that this is not such
a final order or decree as a writ of error may be sued out on.
It is a mere direction to commissioners, the principle of which
may, or may not be acted on, or confirmed, on the final order
of division in the cause. The question will properly arise
on exceptions to the report of the commissioners.
5. The application is made by the administrator all the
orders are made at his instance, and he cannot now alledge
any error in these orders, except for causes shown by a bill
of exceptions.
CHILTON, J. 1. The decree in this cause made by the
orphans' court, which ascertains the interest of the several dis-
tributees, and requires their respective shares to be set apart by
commissioners, must be regarded as final, so as to authorize
its revision on error. Such was the decision by this court in
Harrison et al. ex parte, 7 Ala. Rep. 736; see also, Weather-
ford v. James, 2 Ala. 170; McKinley v. Irvine, 13 Ib. 681.
The motion to dismiss the writ of error, is therefore over-
ruled.
2. The statute requires, that when any of the children of
a person dying intestate, shall have received from such intes-
JUNE TERM, 1848. 89
Andrews, Adm'r, v. Hall et al.
tate, in his lifetime, any real or personal estate by way of ad-
vancement, and shall choose to come into the partition of
the estate, such advancement, both of the real and personal
estate, or the value thereof, shall be brought into hotchpot
with the whole estate, real and personal, descended ; and
such party bringing into hotchpot such advancement as afore-
said, shall thereupon be entitled to his, her, or their share of
the whole estate so descended, both real and personal. Clay's
Dig. 197, 25. In this case, Richard Hall, the grandson of
the intestate, and who is entitled to the distributive share of
his deceased father, William A. Hall, is an infant, under the
age of twenty-one years, and the question is presented, can
the guardian ad litem, or the orphans' court judge, or both,
elect for him to bring into the estate, the value of the proper-
ty received as an advancement by his deceased father, from
the intestate. This question has never before come before
this court, and is one not entirely free from difficulty.
There can be no question but that the law requires the
child whose deceased parent has been advanced in his life-
time, to bring into hotchpot the share or its value which has
been so advanced, before he is allowed to participate in the
distribution of the intestate's estate, since, as the representa-
tive of his father, he could have no better claim than he
would have had, if living. See 2 Williams on Ex'rs, 919 ;
Proud v. Turner, 2 P. Wms. 560.
The statute confers upon the county court judges, "au-
thority, within their respective jurisdictions, from time to
time, to take cognizance of all matters concerning orphans
and their estates." Dig. 302, <> 28. The power is given to
settle estates, and to require the children advanced to bring
into the estate the sums advanced to them, &c. If the share
to which the infant would be entitled, upon bringing the ad-
vance to his parent into hotchpot would exceed the value of
the advance, then, being for the interest of the infant to take
a distributive share, the power is lodged somewhere, as he
cannot elect himself, to make the election for him. In Eng-
land, the king as pater palriac, has the care of infants, and
the court of chancery, to which that care is delegated, has a
general control over them and their interests, whenever they
Vol. 1512
90 ALABAMA.
Andrews, Adm'r, v. Hall et al.
become wards of the court. Bertie v. Lord Falkland, 2 Vern.
333; 2 P. Wms. 119; 1 Mad. Ch. 331. In our country,
the same authority is vested in the equity courts, having a-
dopted the English rules of procedure so far as consistent
with the genius of our institutions; in this State, however,
it is manifest the legislature intended to confer upon the
county court judges an enlarged jurisdiction over orphans
and their estates, from the general language in which the act
above copied is couched. And we think the orphans' court
has power, concurrently with the court of equity, to direct
an election in cases like the present, for the benefit of the
infant. No good could result from driving the parties to a
court of equity, and much delay and expense will be avoid-
ed by the exercise of the jurisdiction by the orphans' court ;
besides, such power seems to be inseparably connected with
the proper discharge of the duties devolved by the statutes
upon that court. See Gregg et al. v. Bethea, 6 Porter 9.
There may cases arise where the jurisdiction of the orphans'
court is inadequate to furnish relief, and the party must re-
sort to a court of equity, but this is not one of them. It is an
error to suppose that the office of a guardian ad litem is a mere
sinecure. It often happens that he should seriously contest
the plaintiff's claim. His duty requires him to acquaint him-
self with the rights, both legal andequitable of his ward, and
to take all necessary steps to defend and protect them. If,
in consequence of his culpable omission or neglect, the inter-
ests of the infant are sacrificed, he may be punished for his
neglect, as well as made to respond to the infant for the
damage sustained. Knickerbacker v. De Friest et al. 2
Paige, 304. It was the duty of the guardian ad litem in
this case, to present to the court the right of his ward to con-
tribution, and the circumstances and conditions connected
with it, so that the court could protect him by making the
election which was essential to his interest. This was done
in the court below, and the action of the court is free from
error.
3. The orphans' court however erred in permitting the
widow to share in the estate brought into hotchpot. She is
is not entitled to any share in advancements made by her
husband to his children, unless real estate be advanced, in
JUNE TERM, 1848. 91
Hunley et al. v. Hunley.
which she may claim dower. This point was expressly de-
cided by this court in Logan v. Logan, at the last term, and
we need not further notice it here. It follows, that as the
widow could not participate in the advancements made to
the children, she had no interest which could be affected by
her testimony, and was a competent witness as between the
administrator and distributees to prove the value of the ad-
vancements.
We should be inclined, from the proof set out in the record,
to place a higher estimate upon the slaves advanced to Wm.
A. Hall, than was affixed by the judge below, but as the case
must go back, and additional proof may be taken, an opin-
ion upon this point in the cause becomes unnecessary.
Let the judgment be reversed and the cause remanded.
HUNLEY ET AL. v. HUNLEY.
1. One person being the executrix of R. H. and the administratrix of Rich-
ard H. his son, the latter estate being indebted to the former, a bill is not
multifarious, which makes her a party, and unites a claim against both es-
tates, although a claim is also asserted against her as due from Richard
H. to R. H. She was a necessary party to protect the interest of the for-
mer.
2. The objection cannot be taken for the first time at the hearing, that one
was improperly made a defendant, he having answered fully, tendering
issues both of law and fact No decree having been rendered against
him, his having been a party, cannot affect the decree made against an-
other defendant.
3. A court of chancery has jurisdiction to entertain a bill for a discovery
of assets, which an administratrix has not returned in her inventory.
4. Where a father went to live with his only son, who afterwards worked
their slaves on the plantation of the son in consideration of which the son
supported the father, after the death of the father, the son should be
charged with the ^reasonable hire of the slaves, if he kept and employed
them.
5. The declarations of a grandfather, that he had given certain slave* to the
92 ALABAMA.
Homey et al. v. Hunley.
children of his sou, will not constitute a valid gift, in the absence of proof
of an actual delivery, the slaves being found in his possession, at his death.
The fact that the slaves were under the control of the father of the chil-
dren will not vary the case, there being no proof that they were delivered
to him for the purpose of consummating the gift.
6. Admissions, or declarations, will not operate an estoppel against the par-
ty making them, unless he derives some advantage, or gains some object
thereby, or the opposite party is induced to act upon it, or sustains some
injury in consequence of trusting to its truth.
Error to the 12th Chancery District. The cause was tried
before the Hon. Chancellor Lesesne.
The facts will appear in the opinion.
GEO. GAYLE, for the plaintiff in error made the following
points :
I. The bill should have been dismissed as to Richard Hun-
ley ; his answer showing he had no interest, and he being
improperly joined. Toulmin v. Hamilton, 7 Ala. 362 ; Cher-
ry et al. v. Belcher, 5 S. $ P. 133.
II. 1. Under the demurrer the bill should have been dis-
missed for want of jurisdiction ; the orphans' court having
previously taken jurisdiction for a final settlement, $*c. See
Apperson v. Cottrell, 3 Porter, 51 ; Eaton v. Patterson et al.
2 S. & P. 9 ; Cherry & Bell v. Belcher, 5 Ib. 133 ; Dobbs v.
Cockerham, 2 Porter, 328. 2. The case in 9 Ala. 391, seeftA
to conflict with these cases, but there the administrator claim-
ed the property under secret gifts. 3. The bill don't charge
the orphans court inadequate to the relief asked; and does
not show that Caroline M. Hunley, as administratrix, has ev-
er refused to account, or is in any default.
III. The decree is erroneous in holding Caroline, as exe-
cutrix of Ransom Hunley, her husband, to an account under
the bill filed for any portion of the crop of 1843. 1. The
bill is multifarious, and the chancellor splits and divides the
multifariousness ; overrules and sustains the demurrer for
that cause, and leaves the question of multifariousness as
though it had not been decided. I have only to show then,
that the bill was multifarious to reverse the decree upon the
decision on the demurrer. 2. The bill is multifarious 1.
JUNE^^TERM, 1848. 93
Hunley et al. v. Hunley.
Because Ransom and Richard, farming in co-partnership in
the year 1843, it seeks to settle that co-partnership with the
representative of the*surviving partner, and to compel the
representative of another person to account for a portion of
his private property, Caroline being the administratrix of
one, and the executrix of the other. 2. Because there should
have been two bills filed ; one to compel Caroline, as execu-
trix of Ransom, the surviving partner in farming, to settle the
partnership, and pay complainant her interest in Richard's es-
tate, or interest in the partnership, she being his widow ; the
other against Caroline, if chancery had jurisdiction, as admin-
istratrix of Richard, to discover assets, and settle, &c. The
bill is clearly multifarious. See Colburn et al. v. Broughton
et al. 9 Ala. 351.
IV. The chancellor erred in decreeing that the eight ne-
groes were not a gift to the children of Ransom G. Hunley.
To constitute a good parol gift, there must be a delivery, or
a change of dominion ; and both of these are unnecessary
under some circumstances, as where a father gives to an in-
fant child. See Sewell v. Glidden, 1 Ala. 53; Sims v. Sims,
8 Porter, 440 ; same, 2 Ala. 117, Goldthwaite^s opinion ;
Caldwell v. Wilson, 2 Spears, 76 ; McLuny v. Lockhart, I
Bailey, 117; Blake v. Jones, 1 Bailey's Eq. 141 ; same, 2
Hill's Ch. 629; Sanderson v. Marks, 2 H. & Gill, 252 ; 2 U.
S. Dig. 468, <, 53.
I maintain that the facts show, that Ransom G. Hunley,
the father of the children, had possession of all the property
of Richard, his father, from 1838, up to Richard's death, in
1843, and supported and controlled them, and supported said
Richard and his family; during which period Richard said
he had given the negroes to the children.
JUDGE and BOLING, for defendant in error.
1. As to the jurisdiction of the court, see Blakey, adm'r, et
al. v. The Heirs of Blakey, 9 Ala. 391 ; Leavens v. Butler, 8
Porter, 399.
2. It is satisfactorily proved, that Richard Hunley remain-
ed in possession of the slaves until his death, exercising own-
ership over them. There appears, it is true, to have been
an understanding in the families, that the slaves belonged to
94 ALABAMA.
Hunley et al. v. Hunley.
the children of R. G. Hunley, who claim them, and declara-
tions of Richard Hunley are proved, which might lead to
such a conclusion ; but these are not sufficient to divest his
title. Blakey, adm'r, &c., supra.
3. Nothing is proved which in law would amount to a
gift. Blakey, $*c., supra; Sims v. Situs's adm'r, 2 Ala. 117,
and authorities there cited. The paper upon which the
names of the children of R. G. H. and the slaves were writ-
ten, is not produced, or proved, and justify the inference that
if produced, it would amount to nothing. If this paper was
a deed, (but the proof shows it was not,) and exists, and is
not produced, this fact weakens the force, and throws discre-
dit upon the inferior testimony adduced of the same fact, if
indeed it does not render it entirely valueless. Blakey,
adm'r, &c., supra.
4. But independent of this consideration, there is no proof
of a gift of the slaves. The declarations of Richard Hunley
in relation to the gift, were contradictory at different times ;
nor does it appear that he ever parted with the possession, or
the right to exercise control, or dominion over them, during
his life, ana there could not therefore be a valid gift of the
slaves at common law. Blakey, adm'r, &c., supra.
5. It is evident that all that Richard and Lucy Hunley
said about a gift of the slaves, was founded upon what took
place when the names of the slaves and the children were
written down. And all, or most that the witnesses prove,
whose testimony is relied on to prove a gift, are such decla-
rations of Richard and Lucy Hnnley. Then if the writing
of the names down, was not a gift, no gift is proved.
CHILTON, J. The bill in this cause was filed by the
defendant in error, on the 8th May, 1846, and charges, that
in 1843, Richard Hunley, the late husband of complainant,
departed this life intestate, leaving complainant his widow,
and Ransom G. Hunley his son, and only heir at law. That
after the decease of his father, but in the same year, Ransom
G. Hunley departed this life, having made and published his
last will and testament in the county of Lowndes, by which
he appointed Caroline M. Hunley executrix, said Caroline
being his widow. That said will has been duly recorded,
JUNE TERM, 1848. 95
Hunley et al. v. Hunley.
and said Caroline has taken upon herself the execution
thereof. That said Caroline was also appointed by the or-
phans' court of Lowndes, the administratrix of said Richard
Hunley, deceased, and qualified as ( such. That the said
Ransom, deceased, left five children, viz : Richard, Mary,
Peter, Ann and Ransom, all of whom are infants, residing
with their said mother, Caroline, and the two last are under
the age of fourteen years. That no guardians have been ap-
pointed for either of said children, who represent their de-
ceased father, and share with complainant in the estate of
Richard Hunley, deceased. That said Richard died seized
and possessed of a large estate, both real and personal, and if
at all indebted, owed a very small amount. That Caroline,
in January, 1844, returned an inventory of said estate to said
orphans' court of Lowndes county, which is made an exhibit
to the bill, but that in the inventory no mention is made of
eight slaves, named in the bill, and charged to belong to said
estate, and which did come, or should have come into the
possession of said Caroline, as administratrix. That she has
never accounted for said slaves in any way whatever.
The bill further charges, that in the year 1837, Richard
removed from the State of South Carolina to Lowndes coun-
ty, and settled on the premises of Ransom, his son, and they
there commenced working their hands together in the busi-
ness of planting, and continued there until the year 1843,
when both of them died. That the crop of 1843, made by
the labor of their hands, had not then been sold, nor the pro-
fits accruing upon it that year, divided ; but was afterwards
sold by said Caroline, and she has failed to account for the
same, as will appear by her inventory, exhibited to the or-
phans' court. Complainant avers her ignorance of the quan-
tity of produce raised on the farm in 1843, and prays a dis-
covery of the proceeds, which have come into the hands of
said administratrix.
The bill also alledges, that a partial distribution has been
made of the estate of said Richard, and that it will be ready
for final settlement as soon as Caroline returns the eight
slaves, and the proceeds of the crop, as assets. That the
debts due to and from the estate have been settled.
The complainant prays subrxuna against the said widow
96 ALABAMA.
Hunley et al. v. Hunley.
and children of Ransom Hunley, and seeks a discovery and
an account of the eight slaves and crop of 1843, and that a
settlement be had in the chancery court of the estate of said
Richard Hunley, and final distribution made of the effects ;
also, that proceedings be enjoined in the orphans' court.
The answers deny that the eight slaves belong to the es-
tate of the said Richard, but on the contrary, aver that they
were given by him in February, 1838, to his four grand chil-
dren, viz : Mary, Peter, Ann and Ransom, and were then
delivered by him to Ransom Q. Hunley for them, he being
their father and natural guardian, and remained in his posses-
sion up to the time of his death. That said slaves have al-
ways, since the gift, been known and regarded as property
belonging to said children.
As respects the profits of the farm for the year 1843, the
answers aver that the parties lived together and cultivated the
farm, under an agreement that the said Ransom should take
charge of the slaves and stock, and carry on the business of
farming on his premises, and that he should support and pro-
vide comfortably for the said Richard and his family pay all
expenses of carrying on the business, and provide said Rich-
ard, from time to time, such small sums of money as he
might need or require, and the said Ransom G. Hunley was
to have and receive the whole proceeds, above the expenses
and outlays aforesaid, for his own proper use, and free from
all account to any one. That the two families, stock, &c.
belonging to both estates of Richard and Ransom, were sup-
ported on the produce of the crop of 1843, until crop time in
the ensuing year, and nearly consumed the corn, fodder, &c.
That one hundred and eight bales of cotton were raised, one
hundred and three of which the administratrix has sold, as
appears by returns of sales made by commission merchants,
and attached to her answer. That in the making of the
crop of 1843, Ransom worked about thirty hands, and Rich-
ard about twelve ; and the said Caroline insists that if she is
bound to account for the proceeds of the crop of 1843, she
should only account for the proceeds of six hands, after al-
lowing a deduction for their proportion of expenses incurred
in carrying on the business, and a reasonable rent for the
land. The answer further insists, that the amounts paid out
JUNE TERM, 1848. 97
Hunley et al. v. Hunley.
for Richard, since his death, by Caroline, coupled with the
expenses incurred in the administration, will amount to as
much as the distributive share of the complainant in the
crop : avers also, a regular division was made of the estate of
said Richard Hunley, early in the year 1844, and that the
complainant received her share of the property. That no-
thing belonging to the estate of said Richard Hunley is now
in her hands for distribution. The chancellor decreed an,
account to be taken of the crop of 1843, and that the eight
slaves alledged to have been given to the children of Ransom,
were the property of the estate of Richard, deceased. Seve-
ral questions of law are raised upon the frame of the bill by
demurrer, which we will consider before we come to the
proof in the cause.
1. It is objected, that the bill is multifarious, and the
chancellor was of this opinion, but permitted the complainant
to elect to proceed against the defendant as administratrix of
the estate of Richard Hunley, for the eight negroes, and the
share of the crop, which she alledged belonged to said estate.
The defendant, Caroline, is the executrix of the estate of
Ransom G., and the administratrix of Richard Hunley, de-
ceased. The assets and funds of the estate of Ransom being
in her hands, if that estate was indebted to the estate of
Richard, the distributees of the latter estate, might well re-
gard the debt as paid to her, and proceed against her as the
administratrix of the intestate, Richard, for the amount due.
She is presumed to retain out of the estate of her testator the
amount of the debt, and this presumption obtains, whether
the demand be liquidated or otherwise. Draughan v.
French's adm'r, 4 Porter, 352 ; McLane v. Spence, adm'r,
&c. 6 Ala. Rep. 894. Although the complainant could have
obtained relief for any portion of the crop due from Ransom
to Richard Hunley, without making the defendant a party
as executrix of the former, still this does not render the bill
multifarious. As the representative of Ransom, who was the
only heir of Richard, it was proper that she should be
brought before the court, that she might protect the interest
of the estate.
The case does not come within the principle ruled in Col-
Vol. 1513
98 ALABAMA.
Hunley et al. v. Hunley.
burn v. Broughton, 9 Ala. Rep. 351, where matters wholly
distinct were united in the bill against the same defendants,
and other persons were also made defendants, who had sepa-
rate and distinct interests. It is more nearly analagous to
the case of McCartney v. Calhoun et al. 11 Ala. Rep. 110, in
which it was held that where one was administrator of two
estates, a claim might be asserted in the same bill against
both. See also Donaldson's ex'rs v. Pope $ Posey, 13 Ala.
Rep. 752.
If, however, the bill was multifarious, the court very pro-
perly permitted the complainant to elect, for which cause of
complaint she would proceed. Marriat & Hardesty v. Giv-
ens, 8 Ala. Rep. 710.
2. There is no error in making Richard R. Hunley a party
defendant to the bill. He claims a distributive share of the
estate of his grandfather, Richard, and although he disclaims
an interest in the eight slaves sought by the bill to be made
assets of said estate, and insists upon the validity of the gift
of them to his brothers and sisters, still, if the gift is set aside,
the property would be distributed, and he would come in for
his share. Besides, he does not merely file his disclaimer of
all interest, and pray a discharge ; but answers fully, tender-
ing many issues of fact, as well as of law, and thus volunta-
rily undertakes to share the burthen of the litigation. No
decree has been rendered against him, and his being a party
cannot affect the propriety of the decree rendered against the
administratrix. It is also well settled, that such objections
come too late at the hearing. Erwin v. Ferguson, 5 Ala.
Rep. 158; Story's Eq. PI. 417, $ 544; Nevvhouse et al. v.
Miles et al. 9 Ala. Rep. 460; see also Heirs of Hoi man v.
Bank of Norfolk, 12 Ala. Rep. 369, upon the subject of dis-
claimer.
3. Neither can the objection for want of jurisdiction be
allowed to prevail. The eight slaves, and the portion of the
crop sought to be recovered, had not been returned by the
administratrix in her inventory. If this property really be-
longed to the estate of Richard Hunley, a discovery, and an
account of the hire of the slaves and the proceeds of the crop,
were necessary to a proper adjustment of the matter, and the
limited jurisdiction of the orphans' court did not furnish ade-
JUNE TERM, JL848. 99
Hunley et al. v. Hunley.
quate relief. It was therefore permissible for the complain-
ant to resort to the court of equity for this purpose, and that
court, having obtained jurisdiction of the cause for one pur-
pose, will proceed to dispose of the whole case. The cases
of Leavens v. Butler, 8 Porter, 399, and Blakey's adm'r v.
the heirs of Blakey, 9 Ala. Rep. 391, fully sustain the juris-
diction. See also Dement et al. v. Adm'rs of Boggess, 13
Ala. Rep. 140. The cases of Cherry & Bell v. Belcher, 5 S.
& P. 9, and Dobbs v. Distributees of Cockerham, 2 Porter,
328, cited by the counsel for the plaintiff in error, do not mil-
itate against the view we have taken. In the case last cited,
the court held that the truth of an inventory might be con-
tested in the orphans' court, and a jury summoned to try the
fact, but say further, " the most ordinary course appears to
be, to proceed by suit on the administration bond, or by bill
in chancery." 2 Por. 338.
4. Many witnesses have been examined upon the subject
of the alledged gift of the slaves, and the interest which is
claimed by complainant in the crop of 1843. We will briefly
state the evidence, that it may be seen on which side it pre-
ponderates.
The first witness examined (Woodall) proves that in 1843
Richard G. Hunley told him, he and Ransom worked their
hands together, but that all the proceeds were to go to Ran-
som, as all that he, the said Richard wanted, was enough to
live on. That Ransom was his only son, and that after his
(Richard's) death, all his property should go to Ransom. The
same conversation is deposed to by the wife of witness, Mrs.
Harriet Woodall.
Joshua Carroll was the overseer for Ransom Hunley during
the years 1842-3, and in these years, /heard Richard H. fre-
quently say the slaves in controversy belonged to the the chil-
dren of Ransom. That he had given to Richard R. Hunley,
the eldest son of Ransom, two slaves in South Carolina by
deed, which he had recorded, and that he had given since
then two negroes to each of Ransom's other children. This
witness further proves that the complainant below, Lucy
Hunley, both before and Isince the death of her husband,
pointed out the slaves in controversy as belonging to Ran-
som's children by gift from her husband, naming the slaves
100 ALABAMA.
Hunley et al. v. Hunley.
which belonged to each. That Richard Hunley lived on the
farm occupied and controlled by Ransom, and which belong-
ed to the latter, who superintended the farming operations,
and paid all the expenses incident thereto. That Richard
told the witness in the years '42-3, that when he came to
Alabama, he had given up all to said Ransom, and all he
wanted was a comfortable support. That Ransom supported
him. That Richard frequently designated the slaves which
he had given to the children, being the eight slaves now in
controversy, and said that he had not then, but intended to
have the deed recorded, as he had previously had the deed
of gift to the eldest son recorded in South Carolina. That
the slaves were most generally about the house of Ransom
G. Hunley, and fed in his yard, &c. Richard had five or six
slaves, which were used as house servants the remainder of
the slaves on the place were put under this witness, as over-
seer in the name of Ransom. That after the death of Ran-
som and Richard, the witness continued in the employment
of their respective widows, who had a division of the slaves ;
said Lucy, the complainant, putting under his control eight
or ten hands, and Caroline, the defendant, about forty-eight.
The witness Lavenberg, proves that the children claimed
their eight slaves in the presence of Richard and the com-
plainant. That the complainant, in the presence of her hus-
band, named the negroes which she and her husband had
given to Ransom's children, being the slaves in controversy
two slaves to each of the children.
Wm. Miller overseed for Ransom in the years '39 and '40,
and proves that Ransom controlled the hands and farm, and
furnished provision for the hands, and incurred the expense
of carrying on the farming operations ; Richard residing on
the place owned by Ransom, and having his dwelling house
a few hundred yards from him. That the children of Ran-
som frequently claimed the slaves in controversy in the pre-
sence of Richard, between the years '38 and '43, and he
made no objection to their claim.
The witness McDonald, proves that he has seen said slaves
about the house of Ransom G. Hunley, and it was generally
understood in both families, that they belonged to the chil-
dren of Ransom, but thinks they were too young to be sepa-
___^ JUNE TERM, 1848. 101
Hunley et al. v. Hunley.
rated from their mother, who belonged to Richard, and too
small to work, and that they were more in the possession of
Richard than of Ransom. This witness also heard Lucy
Hunley, both before and since the death of her husband,
speak of the slaves in controversy as having been given to
the four youngest children of Ransom.
J. B. Stephens heard complainant say, a day or two before
the death of Ransom G. Hunley, that her late husband,
Richard, had given the slaves to the children of Ransom, and
that she had nothing to do with them. She did not, how-
ever, specify the slaves. That this declaration was made by
her upon being informed that she had been sent for by Ran-t
som " to know something about the little negroes which his
father (Richard) had given to his children."
Mrs. Wilson proves that Richard Hunley pointed out to
her eight young negroes, then standing in his yard, saying
he had given them to his four grand-children, Mary, Peter,
Ann and Ransom, the children of Ransom R. Hunley two
apiece; but the witness does not know the slaves in contro-
versy were those pointed out, except the girl Hester. That
Richard Hunley always spoke of these negroes as belonging
to said children.
Angus McKaskal overseed for Ransom in '41-2, and proves
that the slaves of Richard and Ransom worked together on
the place of the latter, and under his control. That Richard
had some forty or fifty acres of land belonging to himself,
but had nothing to do with the management or superinten-
dence of the hands and farm. That the provisions for the
slaves were furnished by Ransom.
Mrs. Jones was present at Ransom's house during his last
illness, when he sent for the complainant; upon her arrival,
she asked the witness why she was sent for, and was told that
Ransom desired to know something about the children's ne-
groes whether she would object to the children having
them. That the complainant, being very much agitated, re-
plied, "Oh no! I wonder if Ransom does think I would
wrong the children."
The witness McRee, boarded with Ransom from 1836 to
the spring of 1840, with a slight intermission, and states that
Richard repeatedly told him he had given the eight slaves to
102 ALABAMA.
Hunley ct ;tl. v. Hunley]
the four children of Ransom. That he designated the slaves
given to each, but the witness does not remember their
names. He further states that the children claimed their re-
spective slaves so given, and that it was well understood in
both families the slaves belonged to them, and which of the
slaves belonged to.each. That Richard lived about a half
mile from Ransom, and the houses occupied by the slaves of
each were located between their dwellings, but the slaves
were fed by, and were under the control of Ransom, except
those immediately about the house of Richard, used as house
servants, cook, &c.
Arabella McDonald, who was examined on the part of the
complainant, states, that she was well acquainted with the
parties. Has known the slaves in controversy from their
birth, and that they were always in the possession of Richard,
up to the time of his death, and were afterwards taken out of
the possession of Lucy Hunley, by a servant woman, and
placed in the possession of plaintiff in error. She further
proves, that upon one occasion, when at the house of Ran-
som Hunley, he and his said father came into the room, the
latter having a piece of paper laying upon a book in his hand,
remarked to Lucy, his wife, that Ransom wished him to give
each of his other children two negroes, to make them equal
with his son Richard, to whom he had already given two,
and requested her to name the little negroes, so that he might
make the selection, and as their names were called, he wrote
them down with a pen or pencil. Immediately thereafter,
Ransom and his father both walked out; the witness heard
Ransom say, "that would not do;" adding that he wanted
him "to fix it," or "attend to it," the next time he went to
Hayneville, and they went to the house of Richard, where the
little negroes were. This witness deposes to after declarations
of Richard, showing that he considered the gift as not per-
fect, for want of delivery, &c.
Mrs. Morrison proves, by the declarations of the plaintiff
in error, how he obtained possession of the slaves, by send-
ing her daughter and a negro woman, and bringing them to
her residence, and then locking them up. This was in
1846.
The witness, Gingles, deposes to conversations had with
JUNE TERM, 1848. 103
Hunley et al. v. Hunley.
Richard shortly before his death, in which he stated that he
had given, or intended to give his grand children two ne-
groes each, but that he had changed his mind ; that he had
not made a title to them, &c. .
We have thus, after a careful examination, extracted from
the mass of depositions taken in the cause, the substance of
the proof, and our minds cannot resist the conclusion, that
Ransom, being the only son of Richard, took charge of the
property of the latter, under an agreement to support him,
and to provide for his family. No special agreement to this
effect is proved, but the circumstances in evidence, coupled
with the repeated declarations of the father, that all he wish-
ed, or expected, was a comfortable support, and that he in-
tended his property for his son upon his death ; and taken in
connection with the further fact, that provisions were fur-
nished the father, and monies paid for him, as is shown by
the depositions of some of the witnesses, without any account-
ing, or charges being made, all very satisfactorily show, that
the use of the slaves was considered as an equivalent for the
maintenance of Richard and his family. It is very clear,
from all the proof, that Ransom was to pay no specified
price for the hands, nor was Richard to receive any specific
compensation in the division of the crops. Their hands had
worked in common for many years, and the comfortable sup-
port of the old gentleman and his family was all that he re-
ceived, and was, according to his oft repeated declarations, all
that he desired, or expected. The proof presents the case of
an aged parent, who, with property sufficient for his support,
yet desirous of freeing his mind from the cares and anxieties
of life, sought an asylum in the family of his only son ; de-
livering over his property to his control, trusting it may be
to the promise of his son, or to his sense of filial duty and re-
ciprocal obligation to protect the property thus committed to
him, and for the comfortable support of himself and family.
This idea accords with the proof, and harmonizes with the
uniform conduct of the parties, which may be considered a
just exponent of the understanding which obtained between
them. We are therefore of opinion, that the chancellor err-
ed in decreeing an account to be taken of the crop of 1843,
104 ALABAMA.
Hunley et al. v. Hunley.
and in charging the plaintiff in error with any portion of the
proceeds.
This arrangement however ceased upon the death of Rich-
ard, and if Ransom kept the property, and appropriated it to
his own use after that period, he was bound for its reasona-
ble hire, which may be decreed under the prayer for general
relief.
In respect to the alledged gift of the eight slaves named
in the bill, to the children of Ransom G. Hunley, it is most
apparent from the proof, that an essential ingredient is want-
ing to consummate the gift, namely, the delivery of the pro-
perty. It is true, Ransom may have had these young ne-
groes, like the older ones, under his control, but this posses-
sion was not the possession of his children. There is no ev-
idence that they were ever delivered to him for any such pur-
pose. Indeed, there is not the slightest evidence of any de-
livery of these slaves, unless we are to infer such fact from
the declarations of the donor, " that he had given the slaves
to the children of Ransom." Such declarations cannot con-
stitute a valid gift, in the absence of proof of actual delive-
ry. Such was the decision of this court in ^Sewell, by his
next friend, v. Glidden, 1 Ala. Rep. 52 ; and which has been
followed by several subsequent decisions. See Sims, fyc. v.
Sims's Adm'r, 2 Ala. Rep. 117; Blakey, Adm'r, v. The
Heirs of Blakey, 9 Ib. 391 ; Philips v. McGrew, 13 Ib. 255.
That Richard Hunley, as well as his wife, the complainant,
may at one time have supposed the gift to have been valid,
is more than probable from their declarations, but whatever
may have been their views respecting its validity, the donor
retained the locus penitentiae until it was consummated ei-
ther by the execution and delivery of a deed of gift, or the
actual delivery of the slaves to the donees, or their guardian.
It moreover satisfactorily appears, that the donor, before his
decease, was apprised of the incomplete character of the gift,
and the slaves are found in his possession at his death. Un-
der all the circumstances of this case, and the proof which
this record contains, we feel perfectly certain that no valid
gift at common law was made of the slaves, and that the
chancellor decided correctly, in decreeing they should be ac-
JUNE TERM, 1848. 106
Garey et a), v. Edwards & Allen.
counted for as a portion of the assets of the estate of Richard
Hunley, deceased.
The counsel for the plaintiff in error is mistaken in sup-
posing the doctrine of estoppel can be applied to the declara-
tions of Lucy Hunley, that her late husband had given the
slaves, &c. To give such effect to the admission, the
party making it must derive some advantage, or gain some
object thereby. The opposite party must be induced to act
upon it, or receive some injury in consequence of trusting to
its truth. Such is not the case before us; it is very certain
such declarations could not justify Caroline Hunley in seiz-
ing by force upon the slaves and taking them from Lucy
Hunley's possession.
For the error, however, in decreeing an account for the
crop of 1843, the decree must be reversed and the cause re-
manded.
GAREY ET ALS. v. EDWARDS & ALLEN, ITSE, <kc<
1. Where a notice to a sheriff and his sureties, that a motion for judgment
will be made against them, is found in the transcript, it will not be re-
garded as a part of the record unless it is made so by a bill of exceptions,
or is identified in the judgment entry.
2. Where notice is given to a sheriff and his sureties that a motion for judg-
ment will be made against them, the motion must be made at the term of
the court, indicated in the notice, or some other proceeding be had to
keep it alive, otherwise it will be considered as abandoned.
3. Where the judgment entry in a summary proceeding against a sheriff
and his sureties, recites, that the defendants had notice of the motion, on
a day anterior to the preceding term of the court, it will not be intended,
to reverse the judgment, that the notice was of a motion designed to hare
been made at such preceding term, but which had not been made.
4. Where a suggestion against a sheriff and his sureties, for the failure of
the sheriff to return an execution, after an accurate description of tho
Vol. 1514
106 ALABAMA.
Garey et al. v. Edwarda & Allen.
judgment and execution, states, that the plaintiff will " move and ask for
a judgment against said defendant, for the amount of said debt, damages
and cost, with legal damages for said default, and interest on said judg-
ment to the trial thereof," it sufficiently indicated that the proceeding is
instituted under the statute of 1819.
5. Where a suggestion against a sheriff and his sureties after describing
the execution, avers the failure of such sheriff to "execute" and return it,
and states, that the plaintiffs will move and ask for a judgment against
the defendants for the amount of said debt, damages and cost " ivith legal
damages for said default" the words, " execute, " and, " with legal damages
for said default," are surplusage, and will not vitiate the proceeding.
6. Where a suggestion is made against a sheriff and his sureties, for a fail-
ure of the sheriff to return an execution, the record of the judgment on
which such execution issued, though found in the transcript, will not be
regarded as a part of it, unless made so by some action of the primary
court.
7. When on the trial of a suggestion against a sheriff and his eureties for
the failure of the sheriff to return an execution, the defendants neglect to
appear and plead, the measure of damages being fixed by the statute,
there is no necessity for the intervention of a jury.
8. Where on the trial of a suggestion against a sheriff and his sureties for
the failure of the sheriff to return an execution, a jury is impaneled and
sworn to assess the damages as well for a failure to " execute, " as for a
failure to return the execution, and judgment is rendered on the verdict,
such judgment is erroneous and cannot be sustained.
Error to the Circuit Court of Franklin. Before the Hon.
D. Coleman.
THIS was a motion by defendants in error against Matthi-
as E. Garey, sheriff of Sumter, and his securities, for the
failure of said sheriff to return an execution in favor of said
defendants, against James E. and Richard S. Jones. The
record contains two notices the first dated the 2d February,
the second the 31st of March, 1842, both returnable to the
spring term, 1842, of the circuit court of Franklin. The
second notice was executed on the plaintiffs in error, on the
2d April, 1842. At the October term, 1842, the defendants
in error filed a suggestion in said court, against said sheriff
and his securities, which recites, that on the 20th May, 1840,
an execution issued from said circuit court in favor of de-
fendants in error, against James E. and Richard S. Jones, for
$385 62, debt, $57 77, damages, and $14 cost of suit, on a
JUNE TERM, 1848. 107
Garey el al. v. Edwards & Allen.
judgment rendered on the 15th April, 1840, which "execu-
tion duly came to the hands of said Matthias E. Garey, sheriff
of Sumter county, for whom the other defendants were se-
curities, in his official bond, and that said Garey, sheriff as
aforesaid, failed to execute and return it according to law.
Whereupon the plaintiffs move and ask for a judgment against
said defendants for the amount of said debt, damages and
cost, with legal damages for said default, and interest on said
judgment to the trial thereof, and the costs of this suit."
This motion was regularly continued at the October term,
1842, and for the six succeeding terms. At the spring term,
1846, judgment by default was rendered against the plain-
tiff's in error. The remaining facts of the case; with the sev-
eral questions raised by the assignments of error, are fully
set out in the opinion delivered by the court.
R. H. SMITH, for plaintiffs in error.
Upon the coming in of the record under certiorari, the first
assignment of errors is abandoned.
There was no notice of any motion to fall term, 1842.
Upon the notice to spring term, 1842, no action was taken,
either on the day or during the term indicated, and the no-
tice had spent its force. Armstrong v. Robinson & Barnwell,
2 Ala. Rep. 164, and authorities of our court there cited.
The rule seems to have been intended as a rule for not re-
turning the execution ; and notice not only should have been
given, but the act under which this proceeding was had
should have been mentioned, or the notice should have been
framed with so much particularity as necessarily to point to
the act referred to. Hill v. The Bank, 5 Porter, 537 ; Mc-
Rae v. Colclough, 2 Ala. 74. There was no appearance by
Garey to cure the want of notice.
If the rule was for not making the money, notice should
have been given. See act of 1841, Clay's Dig. 536, 14,
which in effect provides for notice. But without this sta-
tute, and although the act of 1826, Clay's Dig. 218, 85, is
silent as to notice of the suggestion, the law could not con-
template, nor could it constitutionally provide, that the shc-
ritV of Snmter should be tried in Franklin without notice.
The true mode of proceeding upon this statute is, it is con-
108 ALABAMA.
~~ Gamy et al. v. Edwards &. Allen.
ceived, that upon the suggestion that the money could have
been made, it is the business of the court to order reasonable
notice to the sheriff. Kirkman v. Hawkins, 1 Porter, 25.
The judgment on which the rule was based, was rendered
on 13th April, and the judgment on rule rendered for an al-
ledged default in respect to a judgment rendered on 15th
April. The record on the rule would not bar another recov-
ery, and therefore the rule and the judgment on it are bad.
The death of Prince should have been shown to the court.
Richard Prince, security for M. E. Garey, (and I know of no
other,) is alive, and a party to the writ of error bond.
Neither the notice or motion indicate with sufficient clear-
ness any particular default, nor for what default the rule was
brought. This will readily appear by comparing it with the
statutes.
The court, under the statute, should have caused an issue
to be made up,? and could not render judgment by default.
The question for the jury was the [question of default ; it
was the province of the court to see that notice had been
given ; the damages were fixed b.y law, and not for the jury
to determine. Yet the jury tyere not sworn to try the only
thing they could try the default.
The finding of the jury should be a special finding of such
facts as made out the liability, as our courts have often de-
cided.
That the judgment is too large will appear by computation.
Bondurant v. Lane, 9 Porter, 484.
The fact of suretyship was not for the jury, but for the
court. Minor, 376 ; 2 Ala. 82.
WM. COOPER, for the defendants.
CHILTON, J. We cannot regard the notices of the in-
tended motion sent up in this case as constituting any por-
tion of the record. To make them such, they must be refer-
ed to in the judgment entry, so as to identify them as part of
the record, or be presented by bill of exceptions. Lyon v.
The State Bank, 1 Stew. R. 442 ; Curry v. The Bank of
Mobile, 8 Porter, 372 ; Bates v. P. & M. Bank, Ib- 99 ; Arm-
strong v. Robertson & Barnwell, 2 Ala. 167.
JUNE TERM, 1848. 109
Garey et al. v. Edwards Si Allen.
Could we look to either of the notices sent up, it is per-
fectly clear, that as no motion for judgment was made at the
term of the court indicated hy the notices, they spent their
force, and could not authorize the subsequent action of the
court. Broughton v. The State Bank, 6 Porter's Rep. 48 ;
Lyon v. The State Bank, 1 Stew. Rep. 442, 470; Armstrong
v. Robertson &f Barn well, 2 Ala. Rep. 167.
The motion on which the judgment in this case is predi-
cated was made at the October term, 1842. and regularly con-
tinued until the judgment was rendered. The entry recites,
that the defendants had notice of the motion, on the 1st A-
pril, 1842. We are not allowed to intend that the notice here
alluded to was of a motion to be made at a previous term,
and which was not in fact made. This would be to indulge
a presumption directly opposed to 'the recital of the entry,
and that too for the purpose of reversing the judgment.
It is contended by the counsel for the plaintiff in error, that
the suggestion does not, with sufficient certainty, inform the
said plaintiff of the matters for which they are sought to be
made liable. The suggestion describes the execution, the
date of its issuance, and the amount ; that it was issued on a
judgment recovered in the circuit court of Franklin county,
on the 15th of April, 1840, " and which execution duly came
to the hands of Matthias E. Garey, the sheriff of Sumter
county, and for whom the other defendants were his sureties
on his official bond, and which execution the said Garey,
sheriff as aforesaid, failed to execute and return according to
law ; wherefore the plaintiffs move, and ask for a judgment
against said defendants, for the amount of said debt, damages
and cost, with legal damages for said default, and interest on
said judgment to the trial thereof, and the costs of this suit."
There are two statutes giving the plaintiff a remedy against
the sheriff for failing to return an execution. The act of
1807 authorizes the party injured, upon giving ten days no-
tice, to move the court for a fine against such delinquent
sheriff, not exceeding five dollars per month upon every hun-
dred dollars contained in the judgment, &c. Clay's Dig. 217,
$80. The act of 1819 authorizes the party injured to move
the court for judgment against the sheriff and his sureties,
upon giving three days notice ; which judgment, if the de-
110 ALABAMA.
Garey etal v. Edwards & Allen.
fault is fixed upon the sheriff, is to be rendered for the a-
mount of the execution. Minor's Rep. 376 ; 1 Stew. Rep.
63 ; 3 Stew. Rep. 134 ; 5 Porter's Rep. 545-6 ; Harris v.
Bradford, 4 Ala. Rep. 214. The previons adjudications of
this court require, that in proceeding against the sheriff for
his failure to return an execution, the plaintiff must sufficient-
ly indicate by his notice under which statute he seeks to re-
cover, and that the want of particularity in this respect is fa-
tal. In Hill v. The State Bank, 5 Porter's Rep. 537, the
language of the notice was, " the plaintiff will move the
court for judgment against you, according to the statute in
such case made and provided." This was held insufficient,
as it did not notify the defendant with sufficient precision as
to what was demanded of him. In McRae et al. v. Col-
clough, 2 Ala. Rep. 74, it was held, that a notice informing
the sheriff and his sureties that the plaintiff would move for
judgment against them for the amount of the execution which
was described, and which the sheriff failed to return, was a
sufficient indication that the party was proceeding under the
act of 1819. This last case is in point to show, that the no-
tice in the case at bar, (and which we must intend corres-
ponded with the grounds stated in the suggestion,) was suffi-
cient. The motion is, for judgment for the amount of the
execution, debt, damages and cost, with interest to the trial,
and the legal damages for the default. Now the expression
italicised cannot vitiate the notice. At most it is but sur-
plusage, and the notice would be good without it. The
same may be said with respect to the default " the failure
of the sheriff to execute and return the fieri facias" the
word execute is entirely superfluous, and falls within the fa-
miliar maxim, that " utileper inutile nonvitiatur" Thomas
v. Roora, 7 Johns. 462 ; Com. Dig. tit. Pleader, c. 28; Evans
V. Watrous, 2 Porter's Rep. 205. At most, the plaintiffs by
such averment, that the sheriff failed to execute, as well as
return the writ, takes upon him the burthen of proving such
unnecessary averment to be true, and this the record shows
he has done.
The objection by the plaintiffs' attorney, that there is a
variance between the judgment described in the motion and
judgment entry, and that on which the execution issued, in
JUNE TERM, 1848. 111
Garey et al. v. Edwards & Allen.
this, that the motion and entry show the judgment was ren-
dered on the 15th of April, whereas the record shows it was
rendered on the 13th of that month, cannot be allowed to
prevail. The record of the original judgment forms no part
of this cause, and cannot be looked to for any purpose. The
authorities cited as applicable to the notice, equally sustain
this proposition. 1 Stew. 442; 8 For. 372; Ib. 99; 2 Ala.
Rep. 167.
There remains to consider the points raised upon the judg-
ment entry. This entry shows the defendants below, being
called, made default. That the defendants were served with
notice on the 1st April, 1842. That Garey was sheriff of
Sumter on the 8th August, 1840, and that the defendants
were his sureties upon his official bond. That an execution
issued 20th May, 1840, (describing it) " returnable accord-
ing to law," being fbr $385 62 debt, $55 77 damages, and
$14 costs of suit, which was adjudged on the 15th April,
1840, by the circuit court of Franklin, to said plaintiff, and
was received by said Garey, as sheriff of said county of Sum-
ter, on the 8th day of August, 1840. That the defendants
in the fi. fa. had property sufficient out of which the sheriff
could have made the money while the writ was in his hands ;
but that he failed to execute and return said fi. fa. accord-
ing to law. These facts having been ascertained by the
court, the entry proceeds : " It is therefore considered by the
court, that the plaintiffs recover; but because it is unknown
to the court what damages the plaintiffs have sustained by
reason of the said M. E. Garey's failure to execute and return
said fi. fa. as the law directs ; thereupon came a jury, viz :
Archibald Christian and eleven others, who being elected,
impaneled and sworn, well and truly to assess the plaintiffs'
damages, upon their oaths do say," &c. Here follows the
same facts found by the court as above stated ; and the jury
conclude by assessing the plaintiffs' damages at $677 03.
The court rendered judgment upon the verdict for the
amount so found.
As the defendants failed to appear and plead, there was no
issue made tip for the decision of a jury, and there was cer-
tainly no necessity for submitting to them an inquiry of dam-
112 ALABAMA.
Bright & Ledyard v. Young et al.
ages, since the statute fixes the amount of the plaintiff's re-
covery, for failing to return an execution by the sheriff.
But if it were permissible for a jury to pass upon the ques-
tion of damages, the form in which the matter was submitted
was improper. They were sworn to assess damages for the
default of the sheriff in failing to execute, as well as for failing
to return the writ. Now the statute in the one case gives
the plaintiff a right to a judgment against the sheriff and his
sureties for the amount of the fi. fa., and in the other (fail-
ing to make the money) ten per cent, upon the amount is
superadded. The record does not show but that the defend-
ants below were prejudiced by this misdirection of the court.
For for this cause, the judgment must be reversed, and the
cause remanded.
BRIGHT & LEDYARD v. YOUNG ET AL,
1. Where the plaintiffs in a cause, to whom a deed of mortgage had been
executed, and which remained unsatisfied, in answer to interrogatories
propounded to them under the statute, state, that the deed is in the hands
of S P S, their attorney, and S P S being examined as a witness, deposed
that it has not been in his possession for the last five or six months, and a
notice to produce it on the trial, is shown to have been duly served on R
S, another attorney, who had succeeded S P S in the management of the
cause these facts constitute a sufficient predicate for the admission of
secondary evidence at the instance of the defendant, the deed not having
been produced.
2. Where a deed is not produced after due notice to the party having the
control of it, the court will be liberal in the application of the rule, which
allows secondary evidence ; and though there be no direct evidence of
the identity and execution of the deed, proof of circumstances, tending to
establish these facts, is admissible, and proper to be submitted to the jury.
Error to the Circuit Court of Tallapoosa. Before the Hon.
George W. Stone.
JUNE TERM, 1848. ____^ 113
Bright & Ledyard v. Young et al.
THIS was an action on a promissory note made by James
Young, Reuben G. Young and William Winslett, in favor of
the plaintiffs in error. James and Reuben G. Young did not
defend, but suffered a judgment to go against them by de-
fault. Winslett appeared to the suit, and relied for his de-
fence on the facts, that he was but the surety of said James
and Reuben G. Young, and that the plaintiffs had upon val-
uable consideration, and without his consent, given day to the
said James and Reuben G. To make out this defence,
Winslett propounded interrogatories under the statute to the
plaintiffs, and, among other things, inquired about a deed of
mortgage executed by said James and Reuben G. Young to
them, to secure the note sued, and asked them to attach it to
their answer. They replied that they had received a deed
of mortgage from the said James and Reuben G., but that
they did not recollect what particular notes it was made to
secure, and that it was in the hands of their attorney, Seth P.
Storrs. Col. Storrs was then examined at the instance of
said Winslett, and deposed, that he had not had the said
mortgage in his possession for the last five or six months.
Col. Storrs, some time prior to his examination, had aban-
doned the cause, and it had come under the management of
Reuben Shorter, Esq. A notice to said Shorter, as the
plaintiffs' attorney, to produce said deed at the trial, was
shown to have been served on him about six months before.
The defendant Winslett. (the deed not being produced,) then
offered in evidence a certified copy of it from the office of
the clerk of the county court of Tallapoosa county, and in
connection with the testimony of Col. Storrs, who was a sub-
scribing witness, but who did not identify it with any degree
of certainty, introduced other circumstantial evidence of its
execution and identity, but no direct proof of either. The
court admitted the copy deed, by which it appeared that the
said James and Reuben G. Young had procured from said
plaintiffs an extension on the note sued on. To the admis-
sion of the copy deed the plaintiffs excepted, and now assign
as error :
1. That the defendant Winslett did not lay a sufficient pre-
dicate for the admission of secondary evidence of the contents
of the deed, and that the court erred in admitting the copy.
Vol. 1515
114 ALABAMA.
Bright & Ledyard v. Young et al.
2. That the proof of the execution and identity of the
deed was not sufficient to authorize its admission in evi-
dence.
J. FALKNER, for plaintiff in error.
The notice to Mr. Shorter to produce the mortgage was
served on him 14th October, 1846. This was on the com-
ing in of Ledyard's answer. Mr. Shorter was not the attor-
ney of record, but was merely representing Col. Storrs. De-
fendant's attorney proved that one week after the spring
term, 1847, said deed or mortgage was delivered by him to
Col. Storrs. This was after Col. Storrs had abandoned the
suit, and another attorney had taken the management of it,
and after the notice to Mr. Shorter.
On the 9th of October, 1847, Col. Storrs answers that the
mortgage was not, and had not been in his possession for five
or six months.
The sub. duccs tecum was executed on the day the inter-
rogatories were answered, after the mortgage had gone out of
his possession, and after he had ceased to have anything to
do with the management of the cause.
The mortgage is not shown to have been destroyed, or in
the power or control of plaintiff or his attorney, one of which
was necessary to authorize the secondary evidence. See
Thompson v. Ives, 11 Ala. Rep. 239, and authorities there
cited.
All these facts were known to defendant before he an-
nounced himself ready for trial.
W. W. MORRIS, contra.
CHILTON, J. The main ground relied upon by the
plaintiffs in error to reverse this cause, is the admission of se-
condary evidence of the contents of a mortgage deed executed
by J. and R. G. Young to them. This deed, which was ex-
ecuted and delivered to them, and which remains unsatisfied,
the law presumes to be in their custody, and it was their du-
ty, if they apprehended any injury from an imperfect descrip-
tion of it by witnesses, or from the introduction of a copy, to
have produced the original.
JUNE TERM, 1848. 115
Bright & Ledyard v. Young et al.
One of the plaintiffs, in answer to interrogatories pro-
pounded to him for a discovery as to the mortgage sought to
be proved, says it was in the possession of Mr. Storrs, the at-
torney for the plaintiffs in error, at the time of his answering
the interrogatories. Mr. Storrs was then examined, and an-
swered, that he had seen a mortgage deed from the Messrs.
Youngs to the plaintiffs. That he was a subscribing witness
thereto ; so also was George C. Ball ; but having been casu-
ally called on to witness it, while he happened to be at the
office of Mr. Ball in Montgomery, he did not read it or hear it
read. He further stated, that he did not have the mortgage,
and that it had not been in his possession for some five or six
months prior to his examination.
It further appears, that some twelve months anterior to the
trial, a notice had issued and was served upon Mr. Shorter,
to whose management, as an attorney, the cause had been
transferred by Mr. Storrs, to produce said mortgage on the
trial. The same not having been produced, a certified copy
from the record of the county court was allowed to be read.
The rule requires a party to adduce the best evidence of
the fact to be proved, of which the nature of the case admits,
and which is in his power to produce. In the case before
us, the mortgage deed was made to the plaintiffs in error.
They were the mortgagees, and it is clear from the proof,
that the deed became operative by delivery. The law then,
in the absence of other proof, presumes them to be in posses-
sion of it. Rex v. Leicester, 1 Bar. & Aid. 173 j 3 Phil. Ev.
1187, n. 837, and cases there cited. The notice given the
attorney who was then managing the cause for the plaintiffs,
to produce the deed on the trial, described the deed, and was
sufficient ; it operated as notice upon the plaintiffs, and upon
the attorney who subsequently came into the cause. Clay's
Dig. 337 X $ 137; 1 Mood. & Rob. 242. Reasonable dili-
gence is all the law requires the defendant to exercise in or-
der to procure the better testimony. We think the diligence
disclosed by the record altogether sufficient in this case. In
order to establish the instrument, and procure its production,
the defendant examined one of the plaintiffs in the action.
Finding by the answer of the plaintiff, that the deed was in
possession of Col. Storrs, he is next examined, but he had
116 ALABAMA.
Bright & Ledyard v. Young et al.
parted with its possession some five or six months previous
to his examination. He was also summoned by subpcena
duces tecum, to bring the instrument into court. Col. Storrs
having abandoned the suit, the attorney who represented
him was notified to produce it upon the trial. Now, if under
such circumstances, secondary evidence may not be admitted
of its contents, it would be difficult to conceive of a case
where it should be allowed.
It is true, as insisted upon by the plaintiffs' counsel, that
the execution of the instrument must be proved, notwith-
standing secondary evidence of its contents may be allowed.
In this case, however, the subscribing witness was examined,
and although he cannot speak of the contents, not having
read it or heard it read, still he deposes to certain facts,
which may properly go to the jury as identifying and estab-
lishing the copy offered from the records of the county court
as being correct. When a deed is not produced after notice,
and it is shown to have been under the control of the ad-
verse party, the court will be liberal in the application of the
rale which allows secondary evidence, and so apply it as to
promote the ends of justice. So it is held, that where no di-
rect testimony on the point of execution or former existence
of an instrument is attainable, the fact may be proved by cir-
cumstances. Gillespey v. Woolsey, 1 Johns. Rep. 446. So
also, where a deed to land was lost, and the witness who
testified as to its existence remembered that there were sub-
scribing witnesses to it, but did not know their names, and it
not appearing that the party seeking to establish the deed
had the means of knowing them, held he might prove the
deed by the acknowledgments of the opposite party. 7
Wend. 125. The proof made by Col. Storrs was relevant,
and properly submitted to the jury in connection with the
copy from the register of deeds. Whether it sufficiently
proves and identifies the copy, was a question for the jury.
In such cases, although the proof may be vague and uncer-
tain as to dates, sums, &c., every intendment and presump-
tion are against the party who might make the whole matter
plain by producing the deed. 3 Phil. Ev. 1192.
The plaintiffs, having failed to produce the deed in accord-
ance with the notice, they cannot object that they were not
JUNE TERM, 1848. 117
Trippe, Ex'r, v. John, Adm'r.
afterwards required to produce it upon the examination of
their attorney before commissioners. If they desired to have
the best evidence, the deed itself, it was under their control,
and it had already been called for, but not produced. They
then submitted that the witness might give his best recollec-
tion, as to its existence and contents. The cases relied upon
by the plaintiffs' counsel, of Thomson v. Ives, 11 Ala. Rep.
239 ; Thomas v. Wallace, 5 Ala. Rep. 268 ; and Lazarus v.
Lewis, Ib. 457, do not in the least militate against the views
above expressed. We can discover no error in the judgment
of the circuit court, and it is therefore affirmed.
TRIPPE, EX'R, v. JOHN, ADM'R.
1. Where an antenuptial contract secures to a trustee, for the separate use
of the wife, " all the property of every description, to which she is, or may
be entitled by inheritance, or otherwise whatsoever, " and the wife subse-
quently, by the death of an aunt and a sister, becomes entitled, as one of
their distributees, to several slaves, which the husband receives the pos-
session of, by virtue of a power of attorney from the trustee, and which,
during his life, he acknowledges and recognizes as the separate property
of the wife under the antenuptial contract, on the death of the husband,
the right to such slaves does not vest in his personal representative, but
survives to the wife.
2. Where a wife, having the power, under an antenuptial contract, to con-
vey her separate property by deed, in consideration of a provision made
for her in the will of her husband, executes to M. A. T. and W. F. T.,
his children by a former marriage, a deed of " all the property that she
held in her separate right," and which concludes with a stipulation, " that
said property is hereby fully and freely incorporated with his (her hus-
band's) estate, and all manner of contracts, settlements or legal hindran-
ces to the attainment of that end are hereby waived, I reserving the right,
as a consideration herefor, to become an equal heir in the estate of my
husband with his cliildren, who are the parties to the second part in this
deed " Held, 1. That the deed creates no interest in the husband or his
personal representattive, but vests the property in M. A. T. and W. F. T.
the children of the husband. 2. That the deed is supported by a suffi-
118 ALABAMA.
Trippc, Ex'r, v. John, Adm'r.
cient consideration. 3. That the deed is not void for uncertainty in the
description of the property. 4. That the delivery of the deed was a suffi-
cient delivery of the property.
Error to the Circuit Court of Perry. Before the Hon. S.
Chapman.
THIS was an action of detinue, brought by the plaintiff, as
executor of Henry Trippe, deceased, against the defendant as
administrator of Mary A. Trippe, deceased, to recover the
possession of four slaves. By a bill of exceptions found in
the record, it appears, that after the plaintiff had adduced
proof tending to show the possession of the slaves in contro-
versy, by said Henry, during his life time, and by the plain-
tiff as his executor, since his death, until dispossessed of
them by defendant, the defendant introduced an antenuptial
contract entered into between said Henry and Mary A., then
Mary A. Harris, and Rowe Harris, the trustee therein,
which provides, that " whereas, the said Mary is possessed,
or entitled by inheritance, or otherwise, to certain property,
consisting of lands, slaves, &c., and the said Henry having
agreed, that if the said marriage shall take effect, then, not-
withstanding the same, the said Henry, his executors, heirs,
and assigns, shall not, and will not, have any right, or title
to any part of the said property, to which said Mary is, or
may be possessed of, or entitled to, in any wise or manner
whatsoever, but the same shall remain and be the separate
property and estate of her, the said Mary, now this indenture
witnesseth, that for the purpose of making the said agree-
ment effectual, and preserving the property to the said Mary,
and for her separate use, so that the same shall not be in the
power, or disposal of the said Henry, he, the said Henry,
doth for himself, his executors and administrators, covenant
to and with the said Rowe Harriss, &c., that notwithstand-
ing the said intended marriage, all the estate and property of
her, the said Mary, shall be recognized and taken as a dis-
tinct and separate estate, of and from the estate of him, the
said Henry, and be no wise subject or liable for his contracts,
or the payment of his debts, and the labour and increase that
shall hereafter be gotten or gained from the said slaves, and
JUNE TERM,JL848. 119
Trippe, Ex'r, v. John, Adm'r.
their increase shall be employed or disposed of in such man-
ner, and for such purposes, as is hereinafter mentioned, to
wit : that the increase of the female slaves shall be and re-
main the distinct and separate estate of the said Mary, and
the labor and services of the said slaves shall be under the
control and for the benefit of the said Henry, during the
joint lives of them, the said Henry and the said Mary, and
all the separate and distinct estate before described, or allot-
ted to the said Mary, and the natural increase thereof, shall
be had, taken, held or possessed from and after the decease,
of him, the said Henry, or of the said Mary, in case she
should die first, by such person or persons, and for such use
or uses as she shall at any time or times hereafter, during her
life, remit, order or dispose of the same, or any part thereof,
either by her last will and testament, or by any writing what-
ever, signed with her hand in the presence of two or more
witnesses, and that the said Henry, doth for himself, his
heirs, executors and administrators, covenant to and with the
said Rowe Harris in manner following, to wit : that he, the
said Henry, will permit and suffer the said Mary to give,
grant and dispose of her separate estate as she shall think fit,
by will or otherwise, as above mentioned, $*c. And the
said Mary, in consideration of one dollar, to her in hand
paid, and for the consideration and purposes before mention-
ed, doth hereby sell, transfer and convey, and confirm unto
the said Rowe Harris, and his heirs and assigns, all the
right, title, claim and interest of her, the said Mary, in and
to the effects and properly which she now is, or may hereaf-
ter become entitled to, from the estate of Henry Harris, de-
ceased, and all property of every description which she is, or
may be entitled to by inheritance or otherwise, whatever.
In trust, nevertheless," <kc. It also appears that Henry
Trippe, whilst he had the possession of said slaves, admitted
that he held them in right of his wife, as her separate estate,
and not as his own property, and that the plaintiff also, whilst
they were in his possession, recognized her right to them as
her separate estate. It further appears, that a few hours be-
fore the death of said Henry Trippe, the said Mary A. exe-
cuted a deed to Martha A. and William F. Trippe, children
of the said Henry, by a former marriage, by which, in con-
120
r, v. John, Adm*ri
sideration of the provision made for her in the will of said
Henry, made on the same day, she gave to them " all the
property that she held in her separate right," &c., and which
concludes with the following stipulation, "said property,
both real and personal, is hereby fully and freely incorporat-
ed with his (Henry Trippe's) estate, and all manner of con-
tracts, settlements or legal hindrances, to the attainment of
that end is hereby waived, I reserving the right, in conside-
ration hereof, to become an equal heir in the estate of my
husband, with his children, who are the parties to the second
part in this deed," On the day of the execution of this in-
strument, the said Henry made his will, and therein provided
for the said Mary A. equally with his said children, but his
estate has since been declared insolvent. Some of the slaves
sued for were received as the distributive share of said Mary
in the estates of Mrs. Dawson, her aunt, and Mrs. Creagh, her
sister, both of whom died, during the existence of the mar-
riage between the said Henry and Mary A.; those which came
from the estate of Mrs. D. were received by said Henry, un-
der a power of attorney from Rowe Harris, the trustee of
Mrs. Trippe, and those from the estate of Mrs. C. under a
power of attorney from the trustee of Mrs. C., authorizing
the said Henry to receive them from her administrator.
The court charged, the jury 1. That the antenuptial con-
tract vested a separate in the defendant's intestate, of all the
property she possessed at the time of the marriage ; that if
the jury believed from the evidence, that it was the inten-
tion of the parties to include in it any property that Mrs.
Trippe might afterwards receive, then said property would
be in the same situation with that possessed by her at the
time of the marriage, and that in ascertaining that intention,
the jury could look to the acts and declarations of the par-
ties.
2. That the deed to Martha A. and William F. Trippe
was in accordance with, and a valid exercise of, the power
reserved to Mrs. Trippe in the antenuptial contract ; that it
was a gift to the children of Henry Trippe, and not to Hen-
ry Trippe himself; and that the plaintiff, as the executor of
said Henry, has no right of action under it.
JUNE TERM, 1848. 121
Trippe, Ex'r, v. John, Adm'n
To which charges the plaintiff excepted, and now assigns
them as error.
A. GRAHAM, of Perry, for plaintiff in error.
JOHN& BYRD, for defendant.
CHILTON, J. This was an action of detinue, by the
plaintiff in error, as executor of Henry Trippe, against the
defendant, as administrator of Mary A. Trippe, to recover
certain slaves, which the plaintiff insisted were the property
of his testator.
The question of title mainly depends upon the construc-
tion of the documentary evidence offered upon the trial, and
which is set out in a bill of exceptions, namely t. An ante-
nuptial agreement, entered into between the plaintiff's testa-
tor and the intestate of the defendant, before the solemniza-
tion of the rights of matrimony between them. 2. A sub-
sequent deed by the wife, executed contemporaneously with
the will of the husband, disposing of her interest in the pro-
perty.
It is insisted by the plaintiff in error, that the antenuptial
agreement only bound the property which Mrs. Trippe, then,
Miss Harris, had in her possession, and did not embrace the
property which descended upon her from her aunt, Mrs. Daw-
son, and her sister, Mrs. Creagh, which was acquired subse-
quent to the execution thereof. This construction is not
warranted by the terms of the agreement, which very expli-
citly provides, that her intended husband shall take no right
or title to any part of the property of which she is, or may be
possessed, or entitled to in anywise or manner whatsoever.
And in another part of the same instrument, she conveys to
the trustee, Rowe Harris, "all the right, title, claim, and in-
terest of her, the said Mary A. Harris, in and to the effects
and property to which she now is, or may hereafter become
entitled from the estate of Henry Harris, deceased, and all
property of every description to which she is, or may be en-
titled by inheritance or otherwise whatever." It would be
difficult to use language more explicit, and more appropriate
to exclude the husband's representative from any participa-
Vol. 1516
122 ALABAMA.
Trippe, Ex'r, v John, Adm'r.
tion in property which should thereafter accrue to the wife
by descent, than is here employed, when construed in con-
nection with the other portions of the instrument conveying
the same to a trustee, the said property to be and remain the
separate property of the wife in nowise subject to his con-
tracts, or liable to the payment of his debts. The labor and
services of , the slaves are to be under the control of said
Henry, her intended husband, after the consummation of the
marriage, during their joint lives. The increase of the fe-
male slaves to remain her separate property, and upon the
death of either of the parties, the property so limited shall
vest in the person to whom said Mary shall, by deed, will,
or other writing, signed by her in the presence of two or
more witnesses, order, fyc.
Under the state of the case made by the facts set forth in
the record, it becomes unimportant for us to inquire, wheth-
er the anticipated acquisition of property by Mrs. Trippe, at
the time she entered into the antenuptial agreement, " by in-
heritance, or otherwise whatsoever," would embrace the pro-
perty which was subsequently acquired as her share from the
estates of Mrs. Dawson and Sarah Creagh. The rule of
law in respect to such agreements, undoubtedly is, that no-
thing is embraced which is not within the view and contem-
plation of the parties at the time of entering into the con-
tract. Atherly on Mar. Set. 25 ; 1 Ves. 507 ; 2 Ib. 304 ;
Williams v. Williams, 1 Bro. Ch. Rep. Amer. ed.) 139, mar-
ginal, p. 152. Perhaps the terms, or 'otherwise whatsoever,'
could not be properly construed ta embrace property unex-
pectedly obtained, otherwise than by inheritance, nor to the
earnings of the wife during coverture, which, as against the
husband's creditors would be fraudulent. Keith v. Woom-
bell, 8 Pick. Rep. 211. Nor need we enter into the discus-
sion as to whether the anticipated interest of the wife by in-
heritance, was a contingent interest, capable of being assign-
ed, or a mere possibility, which may not be transferred. The
record clearly shows, that the husband received and held this
property, not as husband, but in strict subordination to the
right of the wife, which right he continued to recognize up
to his death, and which his representative has recognized
since his decease, So that the husband having asserted no
JUNE TERM, 1848. 123
Trippe, ExV, v. John, AdmV.
title or dominion over it jure mariti, but having held it as
the property of the wife, subject to the agreement he had en-
tered into, her right by survivorship is complete. Johnson v.
Uren, 3 Stew. Rep. 172; Mayfield v. Clifton, Ib. 372; Bibb
v. McKinley et al. 9 For. Rep. 636 ; Terrell v. Greene et al.
11 Ala. Rep. 216; 1 Wms. Ex'rs, 557; Wall v. Tomlinson,
16 Ves. 413 ; see also, Hill on Trustees, 415.
In respect to the agreement, it may be sufficient to observe,
that it is the duty of the court to carry it into effect if its
provisions be lawful, according to the intention of the par-
ties, and that the intention of the parties in this case, to
exclude the husband from any right to the slaves beyond the
usufruct for the joint lives of himself and wife, is too appa-
rent from the face of the instrument to need comment. We
know of no rule of law, and no case has been cited denying
to the parties before marriage, the right to make such con-
tract. Hill on Trustees, 408.
We must presume that the trustee of Mrs. Creagh had a
right to receive her share of the estate of Mrs. Dawson, as
there is nothing appearing upon the record to raise a contra-
ry conclusion, and the representative of Mrs. Creagh deliver-
ed the property to Henry Trippe, in virtue of a power of at-
torney, received from such trustee. This property the hus-
band regarded and held as his wife's, under the marriage
contract, and there is no evidence that he held it as a bailee,
for the trustee, or that either of them so considered it. So
that, in our judgment, the plaintiff, as executor of Henry
Trippe, can found no right to recover upon the idea of a bail-
ment, against the repeated declarations of his testator to the
contrary.
By the terms of the antenuptial agreement, Mrs. Trippe
had the power of disposing of the property by will, or deed,
signed in the presence of two or more witnesses. The bill
of exceptions contains a deed of gift from her to Martha and
Warren F. Trippe, of all the property which then belonged
to her, or was her's in her separate right, at and before the
marriage with the said Henry. The deed declares, "that
said property is hereby fully and freely incorporated with his
(the said Henry's) estate, and all manner of contracts, settle-
ments, or legal hindrances to the attainment of that end, are
124 ALABAMA.
Trippe, Ex'r, v. John, Adm'r.
hereby waived ; I (the said donor) reserving the right, as a
consideration herefor, to become an equal heir in the estate
of my husband with his children, who are the parties to the
second part in this deed." This deed was signed and execut-
ed as the articles of agreement entered into previous to the
marriage provided, and appears also to have been recorded.
It is insisted on the part of the plaintiff, that the effect of
this deed is, to vest the property in the estate of the husband
in other words, to incorporate it in his estate, so as that af-
ter the debts of his estate are paid, the balance will remain
for distribution among his distributees ; while the defendants
contend, that it is void and inoperative, because 1. Made
without the knowledge of the trustee in the marriage settle-
ment. 2. There was no consideration not a good one, the
donees being strangers, nor yet a valuable one, the estate of
the husband being insolvent. 3. There was no delivery of
the deed, or the property conveyed, &c. 4. For uncertain-
ty, both as to the grantees and the property sought to be
conveyed.
As to the first objection, it is only necessary to say, that
the deed of settlement, which confers the power of appoint-
ment, does not provide for the concurrence of the trustee in
the execution of the power. And in the absence of such
power reserved in the deed, the wife being vested with a sep-
arate estate, might, notwithstanding the intervention of a
trustee, dispose of it without his consent. It is proper, where
a fund subject to a power is vested in a trustee, that notice
of the appointment should be served upon him, but this is
only required to fix the liability of the trustee, in cases where
he has paid out the fund to a subsequent appointee after such
notice of the prior appointment. 1 Sug. on Powers, 257 ;
Cothway v. Sydenham, 2 Bro. Ch. Rep. 391, Am. ed. 312.
The case before us involves no such controversy.
As it respects the consideration for the deed of the wife to
the husband's children, we regret that the case is too barren
of circumstances to enable us to pronounce a satisfactory
judgment upon it. It was certainly competent for the wife
to have given her separate estate to the children of her hus-
band, and the delivery of the deed, as has been frequently de-
cided by this court, is effectual to vest the property. This
JUNE TERM, 1848. 125
Trippe, Ex'r, v. John, Adm'r.
delivery we must intend from the language of the bill of ex-
ceptions, which states that the execution of the instrument
was duly proved. But it is insisted, the face of the instru-
ment shows, that the consideration was to be valuable
namely, the provision made for the grantor, by her husband,
in his will of even date with the deed. The provision made
in the will, is, that the wife take one third of the testator's
property, both real and personal, after his debts are paid, and
some specific legacies are deducted. It is shown that the es-
tate of Henry Trippe, has been reported insolvent by the
executor to the orphans' court, and that the court has so de-
clared it, and from this it is argued that Mrs. Trippe, or ra-
ther, her administrator, can obtain nothing from the estate as
an equivalent for the deed, and that it is nuduni pactum.
This argument cannot be sustained. The husband is neither
a party or privy to this deed, so far as we are advised by the
facts of the case. The deed is to operate as between the
wife and the children. As to them it was purely voluntary, as
the children were to part with nothing in consideration of
its execution. Upon its delivery, their interest became vest-
ed, and nothing remained for them to do. In other words,
the gift was perfected. But allowing that there was an un-
derstanding, or agreement, between the husband and wife,
that he would insert in his will the provision which is therein,
made for the wife's benefit in consideration of the deed, it by
no means follows that the deed shall be void, because his es-
tate has been declared insolvent. There is no evidence of
any fraud on the part of the husband no importunity, or
the exercise of undue influence. Indeed the circumstances
repel the inference of conduct so unnatural ; for in five days
thereafter, the then flickering lamp of life became extin-
guished, and it could hardly be supposed, that the last hours
of his existence should be employed in perpetrating a fraud
upon the disconsolate partner in his sorrows, to whom he
committed the custody and education of his orphan daughter,
and towards whom he entertained the tenderest affection.
At the arrangement was entered into, perhaps it was im-
possible to arrive at any certain or satisfactory estimate of
what would remain after the payment of the husband's debts.
Much would depend upon the fluctuation in the value of the
126 ALABAMA.
Trippe. Ex'r, v. John, Adm'r.
property, and its management and preservation, as to wheth-
er a surplus would remain. The provision made by the will,
must therefore, in the nature of things, have been contingent,
but as- we have seen a contingent interest may be transferred
by deed, and a fortiori by will, this provision furnished a
sufficient consideration in law to support the deed. And
why may we not suppose the wife contracted with a know-
ledge of the doubtful character of the provision made by the
will for her? Having no children of her own, nor brothers
nor sisters, was there any thing unnatural in her desire to
provide for the infant children of her husband, then shortly
to be cast upon the world without father or mother ? We
think not. Were the wife complaining, a court of chancery,
which, while it allows the wife to sell, or even give her sep-
arate estate to her husband, yet views the transfer with a
jealous eye, would narrowly scan the transaction, and per-
haps would set aside the deed, or decree a suitable mainte-
nance to the wife out of the property. Be this as it may,
she has gone hence, and so far as we are advised, was satis-
fied with the deed which she made, at least the record shows
no effort to repudiate or set it aside. Under such circumstan-
ces we cannot do otherwise than come to the conclusion,
that the deed is valid at law, and vests the estate as is there-
in provided. Clancey's rights of married momen, 247, et
seq. and cases cited. The objection as to there being no de-
livery, we have already noticed; and as to the uncertainty
complained of, it is sufficient to remark, that a particular de-
scription of the property is unnecessary. It is enough that
the grantor in general terms designate the property, so that
with reasonable certainty it can be identified. This she has
done in the deed before us, by conveying all the property
that she held in her separate right, &c.
We do not, however, agree with the counsel for the plain-
tiff in error, that the property specified in the deed is so incor-
porated, or merged in the estate of Henry Trippe, as to belong
to and form assets in the hands of his executor. The property
is conveyed to the children, not the husband. They take it,
not as distributees of the father, but by virtue of the deed, as
a gift from Mrs. Trippe. If she had intended the property to
vest in her husband, so as to have enabled him to dispose of
JUNE TERM, 1848. 127
Branch Bank at Montgomery v. Broughton and Duprey.
it by his will, the conveyance of it would most undoubtedly
have been made to him, as the usual and appropriate mode
of transfering the title ; such not being the case, we cannot
intend that by the terms, "such property is hereby fully and
freely incorporated with his estate," 6fc., the wife meant to
vest him or his executor with the title. We think the true
construction of these expressions, and that which accords
with the evident intention of the don r is, that her separate
property should be so identified with whatever estate of the
husband might remain for distribution, or in the words of
the deed " incorporated with it," as to form a common fund
in which she and the two children were to share equally.
This construction gives effect to each clause in the instru-
ment, and is the only one which will ; and at the same time
does no violence to the language employed. The legal ef-
fect of the deed, according to our view, is not to vest any ti-
tle in the husband, or in his executor, but designates it as a
fund to be shared equally between Mrs. Trippe and the two
children, in common with whatever remains of the husband's
estate for distribution.
The charges of the court are substantially in accordance
with the law as we have above ascertained it, and the judg-
ment is consequently affirmed.
BRANCH BANK AT MONTGOMERY v. BROUGHTON
AND DUPREY.
1. Where a plaintiff suffers a term to elapse betwen the return of his first
execution, and the issuance and delivery to the sheriff of an alias, the
lien of the first is lost and a junior execution issued and delivered to the
sheriff, before the alias is sued out, acquires a superior lien.
2. Although, when property is levied on under an execution and bond ia
given to try the right, it is in the custody of the law, and not subject to
the levy of other executions, which have not a superior lien, this doee not
128 ALABAMA.
Branch Bank at Montgomery v. Broughton and Duprey.
affect the lien of those executions, that have been regularly renewed, on
the surplus that remains from the sale of the property, after discharging
the older execution. In such a case, the lien is suspended, not lost.
3. If a plaintiff in execution, after it has been levied on property of the de-
fendant, instructs the sheriff to stay further proceedings thereon, this in
law is constructively fraudulent as against junior judgment creditors,
whatever the motive may have been which induced the instruction, and
its lien will be postponed in favor of other executions that have issued and
been delivered to the sheriff, before the plaintiff sues out an alias.
Error to the Circuit Court of Barbour. Before the Horu
J. D. Phelan.
THIS was a motion to the court for an application of a
sum of money in the sheriff's hands, raised by the sale of a
slave, as the property of John P. Booth, against whom the
plaintiff, and each of the defendants in error, had obtained
judgments and executions. By the record it appears that
the facts were agreed oti, and are as follows:
1. An execution in favor of Broughton was issued and de-
livered to the sheriff, on the 24th April, 1847, and an alias on
the 21st October, 1847. The first of these was returnable
to October term, 1847, and the other to April term, 1848, of
the circuit court of Barbour.
2. An execution in favor of Duprey was issued and deliver-
ed to the sheriff on the 26th April, 1847, and an alias on the
25th October, 1847. These executions were returnable to
the same court that B's were.
3. An execution in favor of the bank was issued and de-
livered to the sheriff on the 30th September, 1846, and levi-
ed on said slave on the 5th October, 1846, and on the 29th
of the same month, a few days before the return day of the
execution, the plaintiff instructed the sheriff to stay further
proceedings thereon. This instruction was given, because
another execution in favor of the bank, having a superior lien
had been levied on the same slave, a claim interposed, and
bond given to try the right of property. An alias was issued
and delivered to the sheriff on the 22d September, 1847, as
soon as practicable after the trial of the claim case, and the
condemnation of the property therein, and a pluries on the
14th December, 1847. These executions issued from the
JUNE TERM, 1848. 129
Branch Bank at Montgomery v. Broughton and Duprey.
circuit court of Montgomery, the terms of which are held in
May and November. The money in controversy was a sur-
plus, that remained after discharging the bank execution, un-
der which the property had been condemned and sold.
On this state of facts, the court ordered the money to be
applied to the executions in the order in which they stand in
the above statement, to which the bank excepted, and which
it now assigns as error.
COCHRAN and SAYRE, for plaintiff in error.
BUFORD, for defendants.
CHILTON, J. We think there can be but little doubt as
to the correctness of the decision of the court below upon the
facts presented. The statute declares " that the lien created
by the delivery of an execution from a court of record to the
sheriff, shall continue to bind the property of the defendant
as between different judgment creditors in the courts of re-
cord in this State, in the following manner, viz : If a terra
shall elapse after the return of the first execution, before an
alias shall be sued out and delivered to the sheriff, the lien
created by the delivery of the first execution shall be can-
celed, and of no avail ; but if a term shall not have elapsed,
and the alias shall be delivered to the sheriff before the sale
of the property under a junior execution in favor of another
creditor, the lien shall continue, notwithstanding such alias
may not have been delivered until after such junior execu-
tion ; but if such alias shall not be delivered until after the
sale under such junior execution, the lien of the latter will
prevail." Clay's Dig. 209, 43. Now, the property of the
goods of the defendant being bound only from the time the
writ of execution is delivered to the sheriff, (Clay's Dig. 208,
$ 41,) and there having been the lapse of a term between the
issuance of the first execution of the bank, which was the
30th September, 1846, and the issuance of the second, the
27th September, 1847; and the executions of Broughton <$
Duprey having been delivered to the sheriff in April, 1847,
it would seem to follow, from the language of the statute, that
the lien of the latter executions is superior to that of the bank.
McBroom <$ Turner v. Rives, I Stew. Rep. 72; Carey v.
Vol. 1517
130 ALABAMA.
Branch Bank at Montgomery v. Broughton and Duprey.
Gregg, 3~~Stew. Rep. 4337~Mills v. Williams, 2 S7& P. 390;
Collingsworth v. Horn, 4 Stew. & Porter, 237.
Let us proceed to inquire whether the levy, and peculiar
situation of the property, may, notwithstanding this chasm,
preserve the lien. It appears that after the sheriff had levied
upon the slave, the proceeds of the sale of which are now in
controversy, and had indorsed the said levy upon the first
bank execution, he was instructed by the bank to stay fur-
ther proceedings under said fi. fa. This instruction was
given a short time previous to the return day; and the reason
for giving such instruction is stated in the record to be, that
a claim had been interposed, and bond given upon a levy
made under another Ji. fa. of the bank on the same slave.
It is insisted by the attorney for the bank, that this levy gave
a prior right of satisfaction which was not affected by the
instructions, inasmuch as the right to the slave levied upon
was then being tried under a levy made upon said slave, un-
der another execution upon a different judgment in favor of
the bank.
It has been several times decided by this court, that pro-
perty levied upon, and for which a claim has been interposed
under the statute, and a bond given to try the right, pending
said claim, is in the custody of the law, and not subject to be
levied upon by other executions not having a prior lien.
McRea &f Augustin v. McLean, 3 Porter's Rep. 138 ; Pond
v. Griffin, 1 Ala. Rep. 678 ; Rives & Owen v. Wilborne, 6
Ala. Rep. 45, 48. But it does not follow, that because the
property is considered in the custody of the law, and conse-
quently not liable to seizure upon a levy, that the lien of ex-
ecutions which would be entitled to the surplus which may
remain after satisfying the execution under which it was con-
demned, is lost or destroyed. The lien in such case, if exe-
cutions are regularly kept up, is suspended, not lost. Lang-
don v. Brumby, 7 Ala. Rep. 52. The property of the defend-
ant in the execution is not the less his, because a false or un-
founded claim has been asserted to it by a third party. Upon
a sale of it by the sheriff, the proceeds will be applied to the
satisfaction of the oldest liens, and the Ji. fa. under which it
is condemned, may be postponed to an older ji.fa., regularly
kept up from term to teVm. 7 Ala. 52, supra. We think it
JUNE TERM, 1848. 131
Branch Bank at Montgomery v. Broughton and Duprey.
would be an erroneous construction of the statutes which au-
thorize the replevy of property under attachments, or the trial
of the right thereto, to hold, that proceedings under them
should have the effect to interfere with the liens of creditors.
Such was not the intention of the framers of these laws, and
we can readily perceive how the most mischievous conse-
quences would result from such construction. The right to
levy and sell is the means which the law affords for rendering
the lien effectual, and the suspension of this right by the act
of a third party, over which the creditor had no control,
ought not cannot destroy his lien.
Has the execution of the bank lost its priority from the or-
der given by the plaintiff to stay all further proceedings un-
der the execution ? This question was so elaborately inves-
tigated in the case of Wood v. Garey, 5 Ala. Rep. 43, that it
would be useless again to review the authorities there col-
lated and commented upon. In that case, a majority of the
court hold, that to render an execution dormant, or in other
words fraudulent, there must be some act of the plaintiff in-
consistent with the pursuit of the defendant by execution to
obtain satisfaction of the judgment. That the mere delay of
the plaintiff in not compelling the sheriff to levy and sell,
will not raise the presumption of fraud ; but to produce this
result, there must be instructions from the plaintiff to delay
the seizure, or to let the executions sleep in the sheriffs
hands. In the case from which I have quoted, the party
whose execution was sought to be postponed had ordered it
to be returned a few days before the return day, and the court
held this did not work a forfeiture of the lien, and could not
be constructively fraudulent. In this case, the plaintiff or-
dered the sheriff to stop proceedings under his execution, and
did not issue another fi. fa. until near a year afterwards.
If the instruction of the plaintiff to stop further proceed-
ings, after the sheriff had made a levy, is in law construc-
tively fraudulent as against junior judgment creditors, the
motive which prompted the instruction is unimportant as af-
fecting the result. If the act in judgment of law be per se
fraudulent, the motive, however innocent or benevolent, is
not the subject of inquiry. Now, in the case above referred
to, it is stated as the clear result of the adjudged cases, that
132 ALABAMA.
Branch Bank at Montgomery v. Broughton and Duprey.
if the creditor place his execution in the sheriff's hands, with
instructions not to levy; or after a levy, to hold it up and not
to sell, it will be constructively fraudulent against junior
judgment creditors, who will thereby obtain the superior lien.
The case to which we are referred by the counsel for the
bank, of Power v. Van Buren, 7 Cow. 560, (if it can be con-
sidered as correctly settling the law as to the motive for de-
lay,) is not analagous to the case at bar. In that case, the
sheriff levied upon a quantity of hides in the vats undergoing
the process of tanning, which could not be taken up and sold
without sacrificing most of the labor already bestowed upon
them, with the bark used in tanning, and the sale could not
have been made with advantage until warm weather in the
spring. Under such circumstances, the sheriff was instructed
that there need not be a sale until about the first of May, the
levy having been made in the previous autumn. The court
approved the reason given for delaying the sale, and say the
Ji. fa. did not thereby become dormant. In the case before
us, the sale of the slave levied upon is not postponed to await
the decision of the court upon the former levy, but all further
proceeding under the execution is stopped, so that if the de-
fendant had been possessed of never so much property, or had
acquired such property before the return day of the writ, the
sheriff could not, without a violation of his instructions, have
proceeded. The books abound with authorities to show that
such instructions or interference on the part of the plaintiff
will postpone the lien to junior executions. See Kempland
v. McCauley, Peake, 66 ; United States v. Conyngham et al.
4 Dallas, 358 ; Berry v. Smith, 3 Wash. C. C. Rep. 60 ; J.
& B. Knomer v. Barnard et al. 6 Hill's Rep. 377; Keelog v.
Griffin, 17 Johns. Rep. 274 ; Benjamin v. Smith, 4 Wend.
Rep. 336 ; s. c. 12 Wend. Rep. 405 ; Loverick v. Crowden,
8 B. & C. 132.
The case of Rankin $* Shatzell v. Scott, 12 Wheat. Rep.
177, has no application to the case before us. In that case,
the controversy was between different purchasers of real es-
tate bound by judgments ; the land was sold under the junior
judgment, -and afterwards a sale was made under the older
judgment, and it was held that the last sale under the statute
of Missouri passed the paramount title. The question here
JUNE TERM, 1848. 133
Branch Bank at Montgomery v. Broughton and Duprey.
is not mere delay in proceeding to sell, but the plaintiff has
actively interfered and stopped all proceedings under his exe-
cution, and under the circumstances, we cannot do otherwise
than consider the execution as though it had not existed, and
as having no influence upon the lien.
It is further insisted, that although the sheriff had no right
to levy upon the property, yet as he did make the levy under
the bank execution, this confers a lien, notwithstanding the
instruction to stop further proceeding, arid the intervening
lapse of a term. Now it would seem necessarily to follow,
that if the sheriff had a right to seize the property, by virtue
of the execution, it must be for the purpose of disposing of it
according to the mandate of the writ. The levy properly
made, vests a qualified property in chattels in the sheriff, and
he is bound by law to dispose of it in satisfaction of the writ,
unless he is stopped in the execution of his duty in some of
the modes pointed out by law, or by direction from the plain-
tiff. If, on the other hand, he became a trespasser by the
seizure, it was his duty, and we must presume that he dis-
charged it, in the absence of proof to the contrary, to restore
the property to the person from whose possession he had
taken it. If the levy was legal, it follows the sale has been
prevented by the act of the plaintiff, and according to the
anthority above referred to, postpones the lien. If illegal, no
lien could be created by virtue of it, as no authority could
exist for a sale of the property after the return day of the ex-
ecution under it.
Having arrived at the conclusion, that the claim which
was interposed did not destroy, or in any way change the
liens of the respective executions, (see Langdon & Co. v.
Brumby, ad m'r, 7 Ala. Rep. 57,) and that a lien attached,
although the right to levy and make sale of the property was
suspended, and the bank having forfeited the right to prior-
ity, as well by a failure to continue the efficacy of the first
execution, having permitted a term to elapse, as by the in-
structions to the sheriff to proceed no further after a levy was
made, it follows that the executions of the defendants in er-
ror, which came to the sheriffs hands in April, 1847, and
were regularly kept up, overreach the lien of the bank. Rus-
sell v. Gibbs, 5 Cow. 390. Let the judgment be affirmed.
34 ALABAMA.
Commissioners &cTof Talladega eo. v. Thompson.
THE COMMISSIONERS OF ROADS AND REVENUE
OF TALLADEGA COUNTY v. THOMPSON.
1. The commissioners' court of roads and revenue of a county is the proper
defendant in a controversy involving the legality of its proceedings in the
establishment of a new road, and a writ of error will lie in such case in
the name of said court
2. A judge of the circuit court in this state has the power to grant writs of
certiorari, returnable to said court, to correct the errors of the commis-
sioners' court of roads and revenue in the establishment of a new road,
and take cognizance thereof.
3. The record of a court of limited jurisdiction should contain every fact es-
sential to the validity of its judgment, and when in the record of the com-
missioners' court of roads and revenue in reference to the establishment
of a new road, it does not appear, that thirty days notice of the applica-
tion had been given, a decree establishing such road is erroneous, r and
properly quashed at the instance of a party injured thereby.
Error to the Circuit Court of Talladega. Before the Hon.
George W. Stone.
THIS case arose out of the action of the Commissioners'
Court of Roads and Revenue on an application for a new road.
It appears by the record that at a special term of said com-
missioners' court, held on the 21st February, 1847, on a pe-
tition filed for that purpose, said court appointed a jury of re-
view on the proposed road, and that at the regular May term
of said court, the jury reported in favor of the road, and de-
signated its route, &c., whereupon the court ordered it to be
opened and established, and appointed an overseer thereof;
that on the 12th of August, 1847, the defendant in error pre-
sented to the Hon. G. W. Stone, judge of the ninth judicial
circuit, a petition for a certiorari and supersedeas, to restrain
said overseer from carrying said order into effect, in which
she alledges, that the said road, as marked out, will pass
through her premises, and will greatly lessen their va-
lue, &c., and that the proceedings of said commissioners'
court in the matter are irregular, illegal, and void, 4*c.; that
JUNE TERM, 1848. 135
Commissioners &c. of Talladega co. v. Thompson,
said certiorari and supersedeas were awarded according to
the prayer of the petitioner, returnable to the circuit court of
Talladega county ; that on the return thereof, the said com-
missioners' court appeared by attorney, was on its own mo-
tion made a party to the record, and admitting the facts stat-
ed in the petition, moved to dismiss it, which motion the
court overruled, and thereupon gave judgment in favor of
the defendant in error, quashing and vacating the orders of
said commissioners' court, appointing the jury of review and
establishing said road. The record of the commissioners'
court appended to the transcript, does not show that thirty
days' notice of the application for the road was given.
The ruling and judgment of said circuit court is now as-
signed as error, and at the same time a motion is made by de-
fendant to dismiss the writ of error.
L. E. PARSONS, for plaintiff in error.
1. The circuit court should have dismissed the certiorari,
because it was not sued out in the name of the State ex rel,
&c. Moore v. Hancock, 11 Ala. 248.
2. The action of the court of roads and revenue cannot be
reviewed when its subject is a public road. 11 Ala. 247.
The whole subject is specially committed to them by the
statute. Dig. 507, 3. If an individual is injured, he is
entitled to damages, and damages only. Dig. 507, 5 ; 3
Porter, 412.
3. The proceedings in the commissioners' court are legal,
as disclosed by the record. That court has the entire control
of the whole subject ; and every thing will be presumed in
favor of its proceedings. It is not necessary the record should
recite, that notice was given ; that the jury of review were
sworn according to law, and that they were citizens of the
county, &c. &c. These things will be intended in favor of
their proceedings, because the act which gives this jurisdic-
tion is public and general, and this court must take notice
of it.
RICE and MORGAN, for defendant in error.
1. The writ of error should be dismissed. The commis-
sioners' court of Talladega county, co nomine, is not a corpo-
136 ALABAMA.
Commissioners &c. ot'Talladejfa co. v. Thompson.
ration ; nor is it such a person as can sue out a writ of error.
There is no responsibility for costs, and the unauthorized act
of the court does not bind the people of the county.
2. The commissioners' court is a mere judicial tribunal,
and cannot have any possible interest as a court, in the open-
ing of a road. No one can maintain a writ of error who is
not personally interested in the case. The Commonwealth
v. Dudley, 5 Monr. 21 ; See U. S. Dig. Sup. vol. 1, p. 640,
$ 264 ; Ailing v. Stntton, 16 Conn. 436 ; Tidd's Prac. 1053.
It is clear that the commissioners' court are not aggrieved by
the action of the circuit court.
3. The commissioners' court is of limited jurisdiction, de-
riving its power from the statutes alone ; every fact essential
to is jurisdiction must appear on the record. This jurisdic-
tion is conferred by the act of 1836, (Clay's Dig. 507, $ 3,)
and none of the requisites of the law were complied with.
4. The record does not show what persons applied for the
order to open the road. It does not show that thirty days'
public notice was given, as is provided by law; nor indeed,
that any notice was given. Commonwealth v. Coombs, 2
Mass. 489 ; same v. Cambridge, 7 Mass. 158.
5. The jury should have been sworn before they made the
review. The statute cannot be regarded as merely directo-
ry ; such a construction would defeat the common law rule,
that a cause cannot he submitted to a jury until they are
sworn.
6. The circuit court had the authority on a certiorarr, to
quash the proceedings of the commissioners' court. Bur-
rows v. Nandiver et al, 3 Ohio, 383, is a case in point. The
petition, which is admitted to be true, shows, that Sabra
Thompson is directly interested in the proceedings of the com-
missioners' court.
CHILTON, J. The questions for our decision are 1.
Can this writ of error lie in the name of the commissioners'
court ? 2. Can the action of that court be reversed on certi-
orari by petition of an individual showing injury to his pri-
vate property by the action of the court ? 3. If the circuit
court had jurisdiction, is the judgment quashing the order
establishing the highway erroneous ?
JUNE TERM, 1848. 137
Commissioners &c. of Talladega co. v. Thompson.
1. The first question involves the correctness of the order
passed in the circuit court, allowing the commissioners of
roads and revenue to be made a party defendant in that
court. If they were proper parties to resist the petition of
the defendant in error in that court, it follows, they are enti-
tled to prosecute the writ of error in this court. The statute
of 1836, (Clay's Dig. 507, 3,) gives to the respective com-
missioners' courts " full power and authority to order and es-
tablish new roads ; to discontinue such as have, or may at
any time become useless ; to alter roads so as to make them
more useful and convenient, and any order of a commission-
ers' court by which a road is recognized as a public road,
shall in all cases be prima facie evidence of that fact : pro-
vided, that said court shall in no instance grant an order to
establish, discontinue, or change a public road, unless the per-
son or persons petitioning for the same shall have given at
least thirty days' notice of the intended application, by ad-
vertisement at the court house door, and three other public
places in the county," &c. The second section of the act
prescribes the manner in which the new road may be estab-
lished, or an old one changed, viz : that a jury of seven
householders shall be appointed by the court, a majority of
whom may act, who shall be sworn, &c. to lay off and mark
the proposed road, and report to the court. The third sec-
tion provides for compensation to the owners of lands, who
are damaged by the road. The act does not specify any
mode for revising the action of the commissioners' court, nor
designate the persons who may be made parties to a contro-
versy impeaching the regularity of the proceedings had in
the commissioners' courts. But inasmuch as the legislature
has thought proper to commit to the commissioners of roads
and revenue full power and authority over the subject of
ways, we think there is no reason for saying they are not the
proper party defendant in a proceeding to annul what they
have ordered. The public, in such proceeding, should have
some representative, and the commissioners whose acts are
impeached, and to whom such public interests are confided,
are, in our opinion, the proper parties to the writ of error.
The motion to dismiss the writ is therefore overruled. It
Vol. 1518
138 ALABAMA.
Commissioners &c. of Talladega co. v. Thompson.
seems that the commissioners' court of roads, &c. have been
parties defendants to writs of error in this court, and that no
objection was made. This is at least persuasive to show
what has hitherto been deemed the correct practice. See
Smith v. The Commissioners of Roads, &c. 1 Stew. Rep.
183 ; State ex rel. Driver et al. v. Commissioners of Roads,
&c. 3 Porter's Rep. 412 ; see also Lawton et al. v. The Com-
missioners of Highways, 2 Caine's Rep. 179. .
2. In Moore v. Hancock, 11 Ala. Rep. 245, the question
is left undecided, whether a certiorari will lie to the com-
missioners' court to quash an order changing a public road,
except it is sued out in the name of the State, upon the rela-
tion of the party illegally and injuriously affected. The court
inclined to the opinion that it will not. In England, the
court of King's Bench having a general superintendency over
inferior tribunals, not only may award a certiorari to inferior
courts, but also to persons invested by the parliament with
power to decide upon the rights of the citizen, even though
it is declared their action shall be final. 4 Hawk. 144. The
writ, though usually granted in the name of the king, might,
at the discretion of the court, be granted at the suit of the
party. 1 Bacon's Ab. 349, 350. The judges of the circuit
courts have power to issue writs of certiorari returnable to
the circuit courts, so as to revise the proceedings of inferior
jurisdictions. Clay's Dig. 294, 29. So this court, pos-
sessing a general supervision over the other courts of the
State, has power to correct their errors by issuing the proper
remedial writs. Digest, 285, <> 1; Bell et al. v. Payne 4*
Williams, 2 Stew. Rep. 413. Several decisions of this court
indicate this (the writ of certiorari} as the appropriate reme-
dy in the case made by the record. Smith v. Comm'ers of
Roads, &c. 1 Stew. Rep. 183 ; The Intendent and Council
of the Town of Marion v. Chandler, 6 Ala. Rep. 900 ; Ex
parte Tarleton, 2 Ala. Rep. 35 ; John, a slave, v. The State,
1 Ala. Rep. 95 ; The State ex rel. v. Williams, Ib. 342 ; see
also Commonwealth v. Coombs, 2 Mass. Rep. 489 ; Ib. v.
Hall, 8 Pick. Rep. 440 ; 13 Ib. 195 ; Lawton v. Commis-
sioners, &c. 2 Caine's Rep. 179 ; 2 Binn. Rep. 250 ; 3 Ham.
Rep. 383; 8 Verm. Rep. 271. We conclude from these arid
other adjudged cases which might be cited, that the circuit
JUNE TERM, 1848. 139
Commissioners &c. of Talladega co. v. Thompson.
court could lawfully take cognizance of this cause by certio-
rari, and that the commissioners of roads, &c. were properly
admitted defendants. The act here complained of is a judi-
cial proceeding, and should not be confounded with the acts
of corporations possessing legislative, executive or ministe-
rial powers. See 2 Hill's (N. Y.) Rep. 14, and cases there
cited.
3. It remains to consider whether the judgment of the cir-
cuit court is correct. The statute above referred to requires
that thirty days' notice of the application to establish a new
road shall be given by advertisement, &c. Until this was
done, the commissioners had no power to establish the road.
The record does not show that such notice was given, or that
any advertisement was made, and therefore fails to support
the jurisdiction of the court. It is a well settled rule of law,
that the records of a court of limited jurisdiction should dis-
cover every fact essential to the validity of its sentences.
Lister v. Vivian et al. 8 For. Rep. 375 ; Blann, guardian, &c.
v. Grant, adm'r, 6 Ala. Rep. 110; Samuels v. Findley, 7
Ala. Rep. 634. As the application was not preceded by the
notice required by the statute, and the defendant in error has
been enjoined by the order establishing the road, as is shown
by the statements in the petition for the certiorari, which
were admitted in the court below to be true, it results that
there is no error in the judgment quashing the order. In
Commonwealth v. Coombs, 2 Mass. Rep. 489, it was held by
the court (Parsons, C. J.) that the proceedings should show
that notice had been given to the inhabitants of the town,
and this was one of the grounds on which the proceedings
were quashed on certiorari. In the Commissioners of Roads
v. Murray, 1 Rich. Rep. 335, the proprietors of the lands
over which the road passed, had given their consent to its
establishment. The act required that three months' notice
should be given by the commissioners previous to laying out
the road, in the settlement through which it was to pass
the court held that unless the notice had been given, the
commissioners had no authority under the act to open the
road, and to fine the defendant for not working on it. In
that case, the effort was collaterally to impeach the proceed-
ings, and one of the resolutions showed that the clerk wat
140 ALABAMA.
Commissioners &c. of Talladega co. v. Thompson. ~~
required " to give the notice required by law of the applica-
tion to be made to the legislature to lay out said road," &c.
which was ordered to be laid out about a year after the no-
tice was required to be given, the order establishing it recit-
ing, " the said road being a part of the road petitioned for
by this board to the legislature at its last session." The
court say, "the commissioners are public agents, and it is fair
to presume, when they do an act, that they have complied
with all the pre-requisites to the exercise of their power."
This view was certainly correct under the circumstances of
that case ; for the regularity of the proceeding could not be
collaterally impeached, when it was shown that the court
had jurisdiction. But here the application is to vacate the
irregular proceedings by a party injured, who propounds her
interest, and the record does not show she had any opportu-
nity to protect her interest before the commissioners' court-
no notice having been given. We are clearly of opinion that
it should be affirmatively shown by the proceedings, that
notice had been given as the statute requires.
Let the judgment of the circuit court be affirmed.
CASES
ARGUED AND DETERMINED,
JANUARY TERM, 1849,
MEAD v. HUGHES'S ADMINISTRATOR.
1. A plea which sets out the consideration of the contract sued on, but does
not aver wherein the consideration is insufficient, is no answer to the de-
claration and a demurrer to it is properly sustained.
2. A plea which sets up an agreement between the parties in bar of the
action, without stating the terms of that agreement, is defective, and it
is not error to strike it out on motion.
3. If a husband, with no intention of returning removes from this into an-
other state, declares his determination to abandon his wife, and absents
himself for more than five years, the law confers on her the capacity of
contracting and suing, as though she were &feme, sole.
Errror to the County Court of Jackson. Before the Hon.
James M. Green, Judge.
THIS was an action of covenant, &c. instituted by Samuel
Hughes, in his lifetime, and after his death revived in the
name of his administrator, against Samuel Mead, on an in-
strument of which the following is a copy :
" $270. On or before the first day of January next, I
promise to pay Sinthia Hickman, or William Hickman, the
just and full sum of two hundred and seventy dollars of com-
142 ALABAMA.
Mead v. Hughes's Adm'r.
mon currency of this state. Witness my hand and seal, this
8th January, 1842. SAMUEL MEAD, [seal.]"
This instrument had been assigned to said Hughes. Mead
filed seven pleas to the declaration. The second plea states
the consideration on which the said instrument was given,
but there is in it no averment that the consideration was ille-
gal, or had failed, &c. A demurrer was interposed to it, and
sustained by the court. The plaintiff moved the court to
strike out the sixth plea, which avers that said instrument is
void, and of no effect, by virtue of an agreement entered into,
&c. "at the time of its execution, and subsequent thereto,"
without stating the terms of said agreement. The court sus-
tained the motion. The first plea was replied to by plain-
tiff, and the replication to that plea, and the defendant's re-
maining pleas, present the issue, whether, under the facts of
the case, the coverture of the said Sinthia, at the time of the
execution of the instrument sued on, and the agreement
which constituted its consideration, is an answer to the action.
The facts disclosed by the bill of exceptions are these : In
1832, the said Sinthia was married to one George Brittain,
and they lived together as man and wife until the fall of
1836, when Brittain abandoned her and left the state of Ala-
bama, protesting previous to his departure, that he did not
intend to live with the said Sinthia ; since then he has not re-
turned to the state, though he has been heard of in Illinois
and Kentucky. After Brittain abandoned her, the said Sin-
thia resided in the house of her father, with her two children,
the issue of the marriage, until the death of the latter ; at the
sale of her father's property, after his death, she made some
small purchases in her own name, and executed her note
therefor ; she also contracted an account in her own name
with a mercantile house in her neighborhood for goods, that
she needed. The instrument sued on was executed on the
8th January, 1842, to her and William Hickman, whom she
had a short time before married, and whose name she had
assumed, in consideration of an assignment by her and said
Hickman to the said Mead, of her interest in her father's es-
tate, then in the hands of his administrator undistributed.
There is nothing in the bill of exceptions going to show that
said Mead has not realized said Sinthia's interest in her fa-
JANUARY TERM, 1849. 143
Mead v. Hughes's Adm'r.
ther's estate, or that he is not in the uninterrupted enjoyment
of it. Numerous charges were asked by the defendant's
counsel, all of which were, in effect, that if the jury believed
all the facts above set out to be true, then plaintiff was not
entitled to recover ; the charges asked, the court refused to
give to the jury, but gave the reverse thereof. The several
rulings of the court above stated, its refusal to give the charg-
es asked, and the charges given, are now assigned as error.
CLAY & CLAY, for plaintiff in error.
It will be perceived from the bill of exceptions, that the
court below charged, that the removal of a married man from
this state to another state of the Union, and living there five
years, constituted " abjuring the realm," and rendered the
wife, remaining here, a feme sole, capable of contracting as
such, by selling the property of the husband, &c. What is
abjuration ? 1 Tom. L. Die. 17, tit. Abjuration ; 1 Co. Lit.
m. p. 135. What acts a wife may do, and when treated as a
feme sole. 1 Tom. L. Die. 206, tit. Baron and Feme, VI.
When a husband has abjured the realm, or is banished, or has
been transported for felony, being disabled to sue or be sued
in right of his wife, she may be treated as a feme sole. Ib.
But quere, whether she can be sued as a. feme sole, after the
period of transportation is expired, and the husband not re-
turned ? Marsh v. Hutchinson, 2 Bos. & Pul. 233.
A wife may use the goods of the husband, but she may
not dispose of them. 3 Inst. 308, 310. The husband be-
ing domiciled in a foreign country, will not entitle a wife to
contract, unless he be an alien enemy. 2 Boss. & Pull. 226 ;
11 East, 301 ; 3 Camp. 123; 1 Bos. & Pull. 357. A feme
covert cannot contract, bring an action, or be impleaded as a
feme sole, though she lives separately from her husband, and
has a separate maintenance secured by deed, if the relation of
marriage still subsists, and she and her husband are living in
the kingdom. Marshall v. Rutton, 8 T. R. 545; 1 Thos.
Co. Lit. m. p. 135, note P. and so on to the end of chap. X ;
2 Kent's Com. 160. In general the absence of husband af-
fords no ground for a wife's proceeding separately. Bogget
v. Frier, 11 East, 301, and note ; Clancy's H. & W. 61-2-3.
Chancellor Kent (2 Kent's Com. 154, 162,) examines the En-
144 ALABAMA.
Mead v. Hughes's Adm'r.
glish cases, and concludes that the doctrine laid down in
Marshall v. Rutton is well established in England, and is to
be considered the law in this country.
A. feme covert whose husband has been absent six or sev-
en years, and who, in the mean time, has carried on busi-
ness as a feme sole, is still a feme covert in legal estimation.
Commonwealth v. Collins, 1 Mass. T. R. 116. In the case
at bar, it was proved that the wife purchased a few articles,
but not that she traded, and obtained credit generally as a
feme sole.
In Arthur and Corprew v. Brodnax, 3 Ala. 557, the ques-
tion, what amounts to abjuration from the State? was not
raised ; but this court merely presumed, in favor of the court
below, that enough was proven, as the contrary did not ap-
pear.
S. PARSONS, contra.
The note sued on was given in consideration of the inter-
est which Sinthia Hickman had in the real and personal es-
tate of her father, which she and William Hickman, her then
husband de facto, at least, sold to the plaintiff in error. She
was married to George Brittain, who abandoned her and left
this state finally, in the summer or fall of 1836, without ever
reducing her interest in her father's estate to his possession.
She married Mr. Hickman in the spring of 1841, and in
1842 she and Hickman sold and conveyed her interest in her
father's land and personal estate to Mead, the plaintiff in error ;
and this was the consideration of the note. It does not ap-
pear but that Mead got the estate, or if not that he could not
get it. The five years from the departure of Brittain had al-
most elapsed before the second marriage, and had fully elaps-
ed before the sale. There is no legal proof that he was liv-
ing, and none that she knew he was living at the time of the
second marriage, or of the sale. But it appears that Mead
knew the circumstances in which she was placed at the time
of his purchase. Further, if her cohabitation with her se-
cond husband were illegal, still the sale had nothing to do
with that, and she was as much bound by the sale as if her
second husband had not joined in it. She was authorized to
JANUARY TERM, 1849. 145
Mead v. Hughes's Adm'r.
make this sale, as Brittain had abjured. Gregory v. Paul, 15
Mass. R. 31 ; Clancy on H. & VV. 56-7.
As land was the subject matter of the sale, and especially
as it does not appear that the purchaser is not in possession,
a failure of consideration in part is not a good defence. Den-
nis v. White, 1 Ala. 641 ; Cullum v. Br. Bank at Mobile, 4
Ib. 31 ; 1 S. & P. 71.
CHILTON, J. We need hardly institute an inquiry as to
the sufficiency of the second plea, to which a demurrer was
sustained. It merely avers that the instrument sued on was
executed in consideration of the sale to the plaintiff in error
of the interest which Sinthia and George Brittain had in the
estate of one Turner, deceased, who was the father of said
Sinthia. It does not show that the consideration thus set out
was illegal, had failed, or was wanting in any respect so as
to render it insufficient to support the contract. It is no an-
swer to the declaration, and consequently interposes no bar
to a recovery by the plaintiff.
We think also, the court very properly rejected the sixth
plea, on motion. It avers that the writing sued on was to-
tally void, and of no effect, by virtue of the terms of an agree-
ment entered into with the payees thereof, at the time of the
execution of said writing, and subsequent thereto. The plea
(to say nothing of its repugnant averment as to the time
when the agreement was executed) does not aver what the
terms of said agreement are, and thus fails to state the ground
of defence. The plaintiff is not informed as to the matter he
is called on to reply to, nor the jury of what they are to try.
1 Chit. PI. 23. But as neither of these points are insisted
upon by the counsel for the plaintiff in error, in their argu-
ment, we will turn to the main questions discussed, arising
out of the facts and charges contained in the bill of excep-
tions.
As it respects the charges involving the sufficiency of the
consideration, we think it clear, that the court below com-
mitted no error. It does not appear by the bill of exceptions
but that Mead received, and now enjoys, all that he contract-
ed for, and we must intend, in support of the judgment, that
Vol. 1519
146 ALABAMA.
Mead v. Hughes's Adm'r.
such is the fact, and that he entered into the negotiation with
a knowledge of the facts and circumstances under which the
payees of the note transferred to him the interest to which
Sinthia Brittain was entitled out of the estate of her father.
There being no pretence of fraud, mistake, or surprise, in the
transaction, we do not see upon what principle Mead can a-
void the contract thus entered into. That he may subject
himself to litigation, should Brittain sue for a part or the
whole of the interest which he purchased, may prove that
he made an indiscreet bargain, but certainly, in the absence
of other circumstances, furnishes no reason for rescinding the
contract.
It is insisted, however, that Sinthia Hickman, one of the
payees of the sealed note declared upon, was, at the time of
its execution a feme covert, and that for this reason the plain-
tiff cannot recover. The facts show, that she was married
to one George Brittain, in 1832; that they lived together as
man and wife until the fall of 1836, when Brittain abandon-
ed her, and left the state, protesting previous to his depar-
ture, that he did not intend to live with her. There was
some proof that he had since been heard from in the States
Illinois and Kentucky, but he had never, in the knowledge
of any of the witnesses, since his departure from the state,
returned to it. After her abandonment, Sinthia resided in
the house of her father, with .her two children, the issue of
the marriage, until his death, and at the sale of his property
by his administrator, made some small purchases in her own
name, and executed her individual note. Also, she had con-
tracted an account with a mercantile firm in the neighbor-
hood for goods. The obligation in suit was executed to her
on the 8th day of January, 1842, and at the same time she
and her second husband, to whom she had then lately been
married, executed and delivered to the plaintiff in error their
written transfer of the interest of said Sinthia in the estate of
her said father, both as to his real and personal property.
We need express no opinion as to the validity of this se-
cond marriage, which was entered into before the expiration
of five years from the departure and abandonment of Brittain.
We will consider the case as though it had never been con-
summated. The question is then presented, whether, under
JANUARY TERM, 1849. 147
~~ Mead v. Hughes's Adm'r.
the facts of the case, the court below should have given the
charges asked by the plaintiff in error. The substance of the
charges, when construed as applicable to the facts, is, that
the voluntary abandonment of the wife by the husband, and
his residence in another state, as shown in the bill of excep-
tions in this case, did not confer upon the wife the capacity
to trade as a feme sole.
There is no doubt but that by the rigid rules of the com-
mon law, the wife, under the circumstances here presented,
would labor under all the disabilities of coverture, and the
authorities cited by the counsel for the plaintiff in error show,
that the settled law of the English courts, sustains the view
for which he contends. The English cases however are not
at all consistent upon the doctrine, as will be seen by refer-
ence to the work of Mr. Clancy on Husband and Wife, page
54, et seq, where the cases are collated and commented upon.
But a more liberal rule, and one which we think is more con-
sonant with reason and justice, seems to obtain in this coun-
try. In Gregory v. Paul, 15 Mass. Rep. 31, it was held,
that a feme covert, where the husband had deserted her in a
foreign country, and who had thereafter maintained herself
as a single woman, and had for five years been living in that
state, her husband being a foreigner, and never having been
in the United States, was competent to sue and be sued as a
feme sole, and that her release would be a valid discharge for
any judgment she might recover. The judge, in delivering
the opinion in that case, remarks, "miserable indeed would
be the situation of those unfortunate women, whose husbands
have renounced their society and country, if the disabilities
of coverture should be applied to them during the continu-
ance of such desertion. If that were the case, they could
obtain no credit on account of their husbands, for no process
could reach them ; and they could not recover for a trespass
on their persons or their property, or for the labor of their
hands. They would be left the wretched dependents upon
charity, or driven to the commission of crimes to obtain a
precarious support."
In Abbot v. Bayley, 6 Pick. Rep. 89, it was held, that
where a husband, by his cruelty, drove his wife from hia
house, in the state of New Hampshire, and she went to Mas-
148 ALABAMA^
Mead v. Ilujrhfs's Adiu'r.
sachusetts, where she maintained herself for more than twen-
ty years as a single woman, the husband having always been
a citizen, and residing in the state of New Hampshire, and
having since her expulsion, married and cohabited with an-
other woman, the wife was entitled to sue as a feme sole.
See also, Reeves' Dom. Rel. 99.
So also in Starrett v. Wynn et al. 17 Serg. # R. 130, the
court say, " the question then arises when the husband has
abandoned his wife, and separated from her, does his marital
rights still continue so as to give him an absolute property in
her acquisitions. Unless some positive rule of law intervenes,
as he has cut himself loose from the duties which the rela-
tion of marriage imposes, he shall not be allowed its advan-
tages. His conduct would amount to a virtual surrender of
his rights." See also, Robinson v. Reynolds, 1 Aikin's Rep.
174 ; Beane v. Morgan, 4 McCord's Rep. 148 ; Brown v.
Killingsworth, Ib. 429.
These authorities may suffice to show, that if the husband
depart from this state into another, without the intention of
returning, having declared his intention to abandon his wife,
and having been absent, as in this case, for more than five
years, the law confers on her the capacity of contracting and
suing as though she were sole.
The doctrine of abjuring the realm, as it once obtained in
England, by which the husband became civiliter mortuous,
was an incident to the right of sanctuary, which was abol-
ished by statute, 21 Jac. 1, ch. 28, and of course finds no
place in our law. The decision of this court in Arthur $
Corprew v. Broadnax, 3 Ala. Rep. 557, affirms, that if the
husband has abjured the state, and remains abroad, the wife
meanwhile trading as a feme sole, could recover on a note
which was given to her as such. We must consider the term
abjure, as there used, as implying a total abandonment of the
state ; a departure from the state without the intention of
returning, and not a renunciation of one's country, upon an
oath of perpetual banishment, as the term originally im-
plied.
In the case at bar, the wife, deserted by an unfeeling hus-
band, seeks an asylum for herself and two infant children in
the bosom of her father's family, where she remains until
JANUARY TERM, 1849. 149
Haden v. Ware.
his death. Thus cast upon the world with her helpless off-
spring, without protection, and it may be without the means
of support, she sells to the defendant her humble patrimony
for $300, and receives the note in suit to secure the pay-
ment, and this transaction occurs more than five years from
the period of her desertion. The defendant, who we must
presume has received her living, now that he is sued upon
the note, says he ought not to pay it, because she has a hus-
band who may return and claim the fund. In our opinion,
the husband has forfeited all claim to it, and the charges,
with the qualifications, given by the court, are quite as fa-
vorable to the defendant as the law will justify.
Let the judgment be affirmed.
HADEN v. WARE.
1. A purchaser from an Indian reservee, acquires no title by his purchase,
until the contract is approved by the president, when this is done the^pur-
chaser is entitled to a patent, and when it issues it vests the fee in the
patentee.
2. When a patent issues to one reserving the title of all others, whether le-
gal, or equitable, derived from W. & Co, a court of equity will subject
the legal title to a superior equitable title derived from W. & Co.
3. Where one with full knowledge of all the facts constituting his title to
land, purchases it of another, or compromises a controversy in reference
to it, and acts on the presumption that he has no title, the mistake, if one
is made, is of law, and not of fact
4. To authorize a court of equity to interfere, and grant relief for a mistake
of law, the mistake must be so gross, and palpable, as to superinduce the
belief, that some undue advantage was taken of the party, from imbecil-
ity of mind, or the exercise of improper influence.
Error to the Chancery Court of Montgomery. Before the
Hon. A. Crenshaw, Chancellor.
150 ALABAMA.
Hadon v. Ware.
THE bill which was filed by the plaintiff in error, alledges,
that Cowe Hadjo, an Indian of the Creek tribe, was entitled
as a reservee to the west half of section thirty-four, township
seventeen, range twenty-one, east, in the Tallapoosa land
district, and that he sold said land to James C. Watson & Co.;
that on the 30th of July, 1839, James C. Watson 4* Co., for
a valuable consideration, assigned, and relinquished the land,
to one Robert G. Haden, by way of compromise, and settle-
ment, of conflicting land claims, between said Haden, and
said James C. Watson & Co., and that the articles of settle-
ment were filed in the land office at Washington City, that
patents might issue to the parties in conformity therewith ;
that complainant purchased said land of said Robert G. Ha-
den, has paid for the same, and received a bond for titles
thereto, and by virtue thereof took possession, and has made
valuable improvements thereon, and has ever since occupied
the land ; that in the year 1845 he was informed, that a pa-
tent had issued for said land from the government to Robert
J. Ware, and upon receiving such information, he called on
said Ware, to know what claim, or title he had to said land ;
that Ware then exhibited to him a patent for said land, which
appeared to be, and which the complainant believed to be,
valid on its face, and to have been issued on the proper au-
thority, and Ware then averred, that he was the lawful owner
of said land, and denied that complainant had any title, by
virtue of his purchase of Robert G. Haden, and threatened to
turn complainant out of the possession of the same.
The bill alledges further, that the complainant was de-
ceived by the representations of said Ware, that he was the
owner of the land, and by the patent aforesaid, and led to be-
lieve that Ware was the owner of said land, and consequently
was induced reluctantly to purchase said land again of Ware,
for two thousand dollars, for which he executed his three
notes for the sum of $666 68 each, due January, 1846, Jan-
uary, 1847, and January, 1848, and thereupon Ware executed
to complainant, a bond, conditioned to make him such title
as he had, and to assign to complainant the patent aforesaid;
that after this, he applied to an attorney to ascertain how he
should recover back the money he had paid to said Robert
G. Haden ; that his attorney applied to the land office, and
JANUARY TERM, 1849. 151
Haden v. Ware.
discovered that the patent had issued improperly to Ware,
and that in fact complainant was the rightful owner of the
land, under the purchase from Robert G. Haden ; that Ware
acquired no title by the issuance of the patent to him ; that
the patent to him is illegal, and void, and that it should have
been issued to Robert G. Haden ; that the patent to Ware
was issued on the assignment of Alfred Iverson, a pretended
attorney in fact of James C. Watson & Co., which was made
on the 4ih day of May, 1842 ; but the assignment of Watson
& Co., to R. G. Haden, was made on the 30th of July, 1839.
The bill charges, that complainant had no means of knowing
any thing about the articles of agreement, between Watson $
Co., and R. G. Haden, and did not suspect any fraud in the
issuance of the patent, until after his purchase from Ware,
and until after his attorney had procured the evidence of title
from the land office at Washington.
The bill therefore, charges, that the notes were given
without consideration, and in consequence of the fraud of
Ware, practiced on complainant, and the wrongful issuance
of the patent ; that the assignment made by Iverson, to Ware,
was without consideration ; that R. G. Haden had left the
State, and is insolvent ; that the firm of Watson & Co. is
insolvent, and that complainant had demanded said notes of
Ware, and offered to deliver up his bond for title ; and that
Ware knew, thai the patent had issued to him wrongfully,
and that he had no title. The bill prays that the contract
between complainant and Ware be rescinded, and the notes
.delivered up to complainant. The bill was afterwards
amended, by alledging, that at the lime of the transfer of
Iverson, to Ware, complainant was in possession of the land ;
that the assignment to Ware, was for the nominal sum of
$250, and that at the time it was made by Iverson, he was
the attorney of R. G. Haden, and by him employed to pro-
cure title to said land ; and that the patent was procured by
the fraud of Iverson, and Ware, or by Iverson and others.
A supplemental bill was afterwards filed, which referring
to, and reiterating the original bill, alledges, that Ware had
commenced suit on said notes, by attachment, which had
been levied on the property of complainant, and prays an in-
junction, in addition to the relief sought by the original bill.
152 ALABAMA.
1 laden v. Ware.
Robert J. Ware, the defendant, answered the bill, and
amended bill. His answer alledges, that Spier M. Hagerty
& Co., of which respondent was a member, purchased the
land of the reservee, Cowe Hadjo, previous to 1839, and
fully paid for the same ; that they filed their claim before
the commissioner appointed to examine into the claims, by
way of memorial, claiming said land against James C. Wat-
son &. Co., which memorial is attached to the answer; that
on the filing of said memorial, an agreement was entered
into on the 20th day of April, 1839, between Spier M. Hag-
erty & Co., and James C. Watson & Co., and by the terms of
said agreement, which it is alledged is also on file in the
land office at Washington City, the two firms of Spier M.
Hagerty & Co., and of James C. Watson $f Co., became
jointly interested in said tract of land. The agreement is at-
tached as an exhibit to the answer, and shows that Spier M.
Hagerty & Co., claimed by purchase from the Indian reser-
vees, various tracts of land, which were also claimed by
Watson & Co., by virtue of a contract entered into between
the company, and the chiefs of the Creek tribe, under the
directions of Gen. Jesup ; that for the purpose of settling
said controversy, it was agreed, that said Spier M. Hagerty,
and said Watson & Co., should be equally interested in the
lands claimed by Spier M. Hagerty &/ Co., and as to which
they had filed memorials before the special commissioner at
Washington ; and upon the confirmation of the claim of
Watson & Co., the lands claimed by Spier M. Hagerty &.
Co., were to be equally divided between the companies,
by allotting one half section to one, and another, to the other
company, and the said companies were mutually to re-
linquish to each other, the portion allotted to each; that upon
such agreement, the said tract of land described in the bill
was allotted to Spier M. Hagerty & Co., and was so certified
to the commissioner of Indian affairs ; that on the 4th of
May, 1842, Alfred Iverson, the agent of the company of
Watson $ Co., assigned said land to respondent, and re-
quested a patent to be issued to him, and thereupon, the
president issued a patent to the respondent, on the 16th day
of May, 1845, a copy of which is attached to the answer.
The answer also avers, that so far as respondent knew, or
JANUARY TERM, 1849. 153
Haden v. Ware.
believed, Robert G. Haden had no title to said land, and any
claim he may have set up, he believes to be fraudulent. Re*
spondent denies all knowledge of the transfer by Watson &
Co., to R. G. Haden, and knows nothing of the contract be-
tween R. G. Haden, and complainant ; but admits that com-
plainant entered into possession of said land, and made im-
provements on it. Avers, that respondent has uniformly
claimed the land, ever since the purchase by the company of
Spier M. Hagerty^- Co., from the Indian Denies that he
made any false, 'or fraudulent representations to complainant
respecting his title, or that he has in any manner deceived,
or defrauded him ; but states, that complainant, in the sum-
mer of 1845, inquired of him, if he had a patent for said land,
and that he informed him he had, and exhibited it to him for
his inspection, and examination ; that complainant read it,
and then inquired, upon what terms he could purchase the
land, and respondent then informed him. Thereupon com-
plainant accepted the terms, and wished to execute the ne-
cessary writing, but respondent said to him, that he appeared
to be excited ; that he did not wish to execute the writings
at that time, but advised complainant to go home, and reflect
upon it, for ten or twelve days, and if he still wished to make
the purchase, he could then do so, and the writings could be
executed ; that complainant went away, and returned at the
expiration of the time, and then gave the notes described,
and respondent executed the bond set out in the bill. The
answer admits, that respondent said, that Robert G. Haden
had no title, and he still thinks he had none, although he
claimed to have purchased from the Indian reservee. But
his purchase had been declared fraudulent, by commission-
ers, appointed to examine into the frauds, in the purchase of
Indian lands. Respondent believes that complainant made
the contract of purchase, with a full knowledge of all the
circumstances, and that he knew he was purchasing the title
of respondent, and nothing more, and that he did not give for
the title more than it was worth. The patent is also set out
as an exhibit to the answer, and contains a reservation of the
legal, or equitable claim, if any, of any, and all persons
claming under, or through J. C. Watson
Vol. 1520
154 ALABAMA^
Jlndcii v. Ware.
The chancellor, at the hearing, considered the title of
Ware to the land, better than that of R. G. Haden, and upon
that and other grounds, dismissed the bill, which is now as-
signed as error.
McLESTER, for plaintiff in error.
1. The possession of the land by the plaintiff in error from
1839, and his permanent valuable improvements continu-
ously made to the issuance of the patent to the defendant,
on the 16th May, 1845, are notice of his title and adverse
claim to the whole world, equivalent to the registration of a
legal title. His equity need not be recorded, and must pre-
vail against creditors and purchasers. Morgan et al. v. Mor-
gan et al. 3 Stew. 383; Finch v. Earl of Winchelsea, 1 P.
Wms. R. 278 ; Littell's Sel. Cases, 358 ; Harris et al. v. Car-
ter's adm'rs et al. 3 Stew. 233 ; Burt v. Cassety et al. 12
Ala. Rep. 734; Scroggins v. McDougald, 8 Ala. Rep. 382.
2. The transfer of the said land made by Alfred Iverson,
attorney in fact of James C. Watson & Co., to the defend-
ant, on the 4th of May, 1842, was absolutely void, for the
plaintiff had long been, and was then in the adverse posses-
sion of the land, claiming under title bond of R. G. Haden, to
whom the land had been transferred by Watson & Co. on
the 30th of July, 1839 ; and the patent is void for the same
reason. See Dexter & Allen v. Nelson, 6 Ala. Rep. 68 ;
Scroggins v. McDougald, 8 Ala. Rep. 383.
3. If the assignment upon which the patent issued is void,
the patent also is void, for the stream cannot rise above its
source. Ladiga v. Roland, 2 Howard, 581. The United
States had no right to issue the patent to Ware. Reynolds
v. McArthur, 2 Peters's R. 417; Jackson ex dem. Dickerson
v. Stanly, 10 Johns. R. 133.
4. If the patent to defendant is valid, and the United
States cannot issue another, then the defendant is a trustee
for the plaintiff, for an equitable shall prevail against one
having a naked legal title, and he should be forced to con-
vey at his own costs, having wrongfully obtained the title.
Morgan et al. v. Morgan et al. 3 Stew. R. 383 ; Meredith v.
Naish. Ib. 207; Burt v. Cassety, 12 Ala. Rep. 734.
5. The complainant purchased the land of the defendant
JANUARY TERM, 1849. 155
Haden v. Ware.
on the 13th August, 1845, soon after the issuance of the pa-
tent, for $2,000, remaining in the possession of the land
which he had held from September, 1839 " Having a right
to the land, and being ignorant of his own title, equity will
compel the vendor to refund the purchase money, with in-
terest, from the time of bringing the bill, although no fraud
appear." 2 Sug. on Vendors, marg. page, 44; 1 Vesey, sr.
126; Mosely, 364; 2 Scho. & Lef. 101; 2 Ball & Beat. 171;
1 Story's Eq. 134, <> 122; 1 Ves. sr. 400; 2 Ib. 304.
6. It cannot be pretended that this is a compromise of a
doubtful, or even bad claim. It is a purchase by the com-
plainant of his own property, at a full price ; but if it is a com-
promise ; it was induced by false representation, and was
therefore voidable. 10 Ala. R. 305.
J. E. BELSER, contra.
1. The title to the land has been adjudicated by the gov-
ernment, and the patent has issued to defendant, reserving
on its face the equities of the parties claiming through Jas.
C. Watson & Co. This patent cannot be vacated, as at-
tempted by complainant. Jackson v. Hart, 12 Johns. 77; 1
Mun. 135.
2. The law requires reasonable diligence in a purchaser,
to ascertain defect of title, but when such defect is brought
to his knowledge, no inconvenience will excuse from the ut-
most scrutiny. 15 Peters, 94 ; 4 Ohio, 458 ; 2 Binn, 455.
3. The notes given by complainant to defendant for the
land, were fairly and intelligently given in the settlement of
a claim backed by a patent. The defendant, in his answer,
denies ever making any fraudulent representations on his
part in the case, and there is no proof adduced by complain-
ant tending to establish this part of his bill. Again, defend-
ant's bond, executed to complainant, shows that the latter
well knew what he was purchasing, and the testimony of
the witness Blakey proves that the land was purchased by
complainant after deliberation and inquiry. The contract
will be upheld, without reference to complainant's previous
title or previous possession. 8 Mete. 403; 3 Hill, 604; 1
Stew. 532; 9 Cranch, 98 ; 5 Wheaton, 304; 4 Ohio, 459;
2 Binn, 455.
156 ALABAMA.
Haden v. Ware.
4. The evidence of R. G. Haden is inadmissible on the
ground of his interest : it is objected to for this cause in the
record. That of Abbott and Ryan, objected to by complain-
ant, is immaterial ; the record from the government office is
proved, independent of their testimony. Their proof as to
their agency, &c. is however good, and this, coupled with
the record, is sufficient. The complainant did not purchase
of R. G. Haden until 25th September, 1839.
DARGAN, J. The proof altogether fails to establish, that
the defendant in error practised any fraud or imposition on
the plaintiff, in the execution of the contract. But it is con-
tended, that the complainant is entitled to relief on the ground
of mistake ; that at the time of entering into the contract, he
had the title to the land, and he made the purchase in igno-
rance of his rights, and by the contract he acquired no title,
nor did Ware, the defendant, part with any. On this ground
it is contended, that equity ought to relieve him. It there-
fore becomes necessary to examine if there was a mistake,
and if there was, is it of such a character as entitles the com-
plainant to relief.
The material facts on which the title, or claim of the par-
ties to the land in dispute depend, are as follows : The com-
plainant claims the land by a contract made with Robert G.
Haden, who claimed to have purchased of the Indian, for
whom it was reserved under the treaty of 24th March, 1832.
But this contract of R. G. Haden has not been approved by
the president. Spier Hagerty fe Co. of which firm the de-
fendant was a member, also claimed to have purchased the
same land from the Indian, but this contract also had never
received the approval of the president. J. C. Watson & Co.
also claimed the land, by a contract entered into with the
chief of the tribe, and their contract was ratified and approv-
ed by the president. Before this however was done, R. G.
Haden and Watson & Co. having conflicting claims to dif-
ferent tracts of land, bought from the Indians, entered into an
agreement by which these claims were to be settled, and by
this agreement, the land in dispute was to be assigned to R.
G. Haden. This agreement bears date the 3d day of July,
1839. Spier Hagerty & Co. also claimed various tracts of
JANUARY TERM, 1849. 157
Haden v. Ware.
land which were claimed by Watson & Co., and they had
filed memorials before the commissioner appointed to exam-
ine into the conflicting titles derived from the Indians, against
the claims of J. C. Watson & Co. On the 20th May, 1839,
the two firms of Watson & Co. and Spier Hagerty & Co.
entered into an agreement, by which opposition to the claims
of Watson & Co. was withdrawn, and the lands claimed by
both the firms were to be equally divided between them, by
half sections ; and the answer alledgcs, that under this agree-
ment, the land in dispute was allotted to Spier Hagerty &
Co., and was so certified to the commissioner of Indian af-
fairs. On the 4th day of May, 1842, the agent of the com-
pany of J. C. Watson & Co. assigned the land to the respon-
dent, and requested the patent to be issued to him, which
was done in 1845. But the patent, on its face, reserves all
title, whether legal or equitable, in favor of any other per-
son, derived from Watson Sf Co. From the evidence it ap-
pears, that Iverson, as the agent of Watson &. Co. assigned
the land to Ware, and requested the patent to issue to him.
It also appears, that Robert G. Haden, and the complainant,
had employed Iverson to represent the claim of complainant,
and to procure for him a patent. After the patent had issued
to Ware, the complainant called on him, to inquire if it had
been issued to him, and being informed that the patent had
been issued to the defendant, he inquired whether the defend-
ant would sell the land ; Ware answered in the affirmative ;
stated to him the terms on which he would sell, and then
showed him the patent ; which was examined by the com-
plainant ; but the defendant declined then to consummate
the contract, because the complainant seemed to be excited ;
but requested him to take time to reflect on it, and if he still
desired to make the trade, after ten or twelve days delibera-
tion, that he would consummate it. The answer also admits,
that in this conversation, he expressed the opinion, that R.
G. Haden had no title, and still insists that he had not. At
the expiration of ten or twelve days, the complainant return-
ed, and still desiring to make the trade, it was consummated.
These are the material facts on which the title of the parties
to the land in dispute depends, and the circumstances under
which the contract sought to be rescinded was entered into.
158 ALABAMA.
v. Ware.
We think it very clear, that the legal title to the land pass-
ed to Ware, by the patent. By the treaty, the ultimate fee
in the land reserved for the Indians, remained in the govern-
ment ; and the purchaser from an Indian reservee acquired
no title by his purchase, until the contract was approved by
the president ; when this was done, the purchaser became en-
titled to a patent, which, when issued, carried the fee to the
patentee. 5 Porter, 161; Ib. 413.
As neither the contract af Haden, or of Spier Hagerty &
Co. was approved by the President, neither of them gave,
within themselves, any right or title to the land. The con-
tract of J. C. Watson & Co. was approved of, and they be-
came entitled to a patent, and could have it issued to them-
selves, or could direct that it be issued to another ; and a pa-
tent issued on this contract, which had received the sanc-
tion of the president, carried with it the legal title.
It is true, that a patent for land issued without authority
of law, is void ; or if the government has no right or title of
any description, to the thing granted, the patent is a nullity,
and confers no right or title whatever on the patentee.
But this is not the condition of the patent in the present
case. The president had authority, and it became his duty
to issue patents to such persons as purchased the Indian re-
servations, after the contract had been approved by him ; and
a patent thus issued, carries with it the highest evidence of
legal title.
In reference to the land in dispute, the title was in the
government, and the president was authorized to issue a pa-
tent to Watson & Co. A patent was issued under their au-
thority to Ware, and it vested in him the legal title. There
was then no mistake in regard to the legal title. The patent,
however, reserves the title of all others, whether legal or
equitable, derived from Watson & Co., and if the complain-
ant had the superior equitable title, a court of equity would
Bubject the legal title to it ; and probably would do so, even
if there had been no express reservation of title on the face
of the patent. If then there was a mistake at all, it was in
reference to the equitable, not the legal title to the land.
But if we should arrive at the conclusion, that there was a
JANUARY TERM, 1849. 159
Haden v. Ware.
mistake, and that before the contract was entered into, the
complainant had the superior equitable title, we should be
met with the question, whether a court of equity, under the
circumstances of this case, could afford relief on the ground
of mistake alone ?
I admit, that if one wholly ignorant of his title, and as-
serting no claim to land, purchases it of another, and after-
wards discovers that he had the title before his purchase, and
that his vendor had none, a court of equity would afford re-
lief, and decree the vendor to refund the purchase money.
1 Sugden on Vend. 253-4. But the foundation of relief in
such a case is, that the party acted in ignorance of the facts.
When all the facts constituting the title of the complainant
are known to him, and he purchases the land, or compromi-
ses a controversy in reference to it, and acts on the presump-
tion that he has no title, then the mistake is one of law, and
not of fact.
If there was a mistake made by the complainant, it was a
mistake of law, for we are satisfied that each party knew the
facts on which his own title, or claim, depended. The pa-
tent which reserves the title of all persons, whether legal or
equitable, was examined by the complainant ; he then took
time to deliberate on the propriety of the contract, and delib-
erately entered into it, against a mistake of law; under such
circumstances equity cannot afford relief.
There are cases to be found, which hold that equity can
grant relief against a plain and palpable mistake of law.
Bingham v. Bingham, 1 Vesey, 126; Lansdown v. Lans-
down, Mosely, 364; 2 Sch. & Lef. 101; 2 Ball. & Beat.
171. But I think, on a strict examination of the cases, it
will be found, that the mistake was so gross, and palpable,
as to superinduce the belief, that some undue advantage was
taken of the party, owing either to his imbecility of mind, or
the exercise of improper influence. When the evidence is
sufficient to induce that belief, then a court of equity ought
to interfere. 1 Story Eq. 138, 140. And whether there
may not be cases of such gross mistake as to afford evidence
within themselves of undue advantage, against which equity
will relieve, it is not necessary to decide ; for if there was a
mistake as to the legal rights of the parties in this case, it
160 ALABAMA.
Snodgrass v. Cabiness, assignee, &c.
was made with a full knowledge of all the facts, after due
deliberation, without any persuasion on the part of the de-
fendant, or any effort on his part to induce the complainant
to enter into it. Both parties asserted title to the land, and
by the contract, the legal, if not the equitable title passed to
the complainant. Under such circumstances, a mistake of
law alone cannot give a title to relief. See 18 Wend. 407 ;
6 Paige, 189; 1 John. Ch. R. 512. Let the decree be af-
firmed.
CHILTON, J., not sitting.
SNODGRASS v. CABINESS, ASSIGNEE, &c.
1. A regular grant of administration eo instardi invests the administrator
with the personal assets of the intestate ; and they are not subject to sei-
zure and sale under an execution issued on a judgment rendered against
the intestate, after his death, notwithstanding the administrator may have
converted or fraudulently disposed of them.
2. If C. and H. combine to perpetrate a fraud on the creditors of an estate
at a sale by the administrator of the property thereof, and C. alone, becomes
the purchaser, and H. afterwards acquires possession of the property un-
der a contract with C. the mere possession of it, by H. or those claiming
under him, will not, of itself, give them the right to retain it as against C.
or his assignee.
Error to the Circuit Court of Madison, before the Hon. G.
D. Shortridge.
THIS was an action of detinue, instituted by Stephen Car-
ter, and subsequently revived in the name of defendant in
error, his assignee in bankruptcy, against the plaintiff in er-
ror, to recover the possession of two slaves, with damages for
their detention. It appeared by a bill of exceptions in the
record, that the slaves in question were once the property of
JANUARY TERM, 1849. 161
Snodgrass v. Cabiness, assignee, &c.
one George Swink, who died on the 15th March, 1838, and
that said Carter purchased them at a regular sale made by
the administrator on said S wink's estate, on the 22d Februa-
ry, 1839; that after the death of said Swink, the Branch
Bank at Decatur recovered judgment against him, McNairy
Harris, et als, as partners, under the style of Geo. Swink &,
Co.; that execution issued on said judgment, was levied on
said slaves, after said administrator's sale, and that!the slaves
were purchased at a sale by the sheriff, under said levy, by
the said bank, and that plaintiff in error subsequently pur-
chased them from said bank. It further appears, that after
the administrator's sale, and purchase by Carter, the slaves
were left in the possession of said Harris, under an arrange-
ment between him and Carter, and that he ran off with them
to the State of Tennessee, &c. The bill of exceptions also
discloses numerous facts tending to show a fraudulent com-
bination between said administrator, Carter, and Harris, at
said administrator's sale, as well as other facts, conducing to
show, that Harris, by an arrangement with Carter, had ac-
quired a right to the slaves, $*c.
The court charged the jury, that if they believed from the
evidence, that the negroes sued for were the individual pro-
perty of Geo. Swink, at the time of his death, the defendant
could not urge fraud in the purchase of them at said adminis-
trator's sale, to impeach the validity of said sale, unless they
should also believe from the evidence, that the bank was at
the time of said sale, an execution creditor of said Swink.
The defendant's counsel asked the court to charge the ju-
ry, that if they believed said administrator's sale, and the
purchase thereat, were fraudulent, or brought about by a
fraudulent combination between Carter and Harris, Harris
having the possession of the slaves, was in a better condition
than Carter, and under such circumstances Carter could not
recover them from Harris, or anyone claiming under him,
which charge the court refused to give, as asked, but quali-
fied it by adding, that the charge was perhaps correct as an
abstract proposition, but that defendant could not be heard
to alledge fraud in the sale, unless the bank was an execution
creditor of Geo. Swink. To the charges given, and the re-
Vol. 1521
162 ALABAMA.
Snodgrass v. Cabiness, assignee, &c.
fusal to give the charge asked, the defendant excepted, and
now assigns them as error.
CLAY & CLAY for plaintiff in error.
The action was brought after the delay of years by
Carter. S. D. Cabiness, the defendant in error, takes his
place as assignee in bankruptcy, merely ; consequently it is
a question between Carter and the creditors of Harris. Then
if Carter lent himself to the fraudulent purposes of Harris ; if,
as he admits upon his oath, he' consented to become the se-
cret purchaser, and intended to let Harris have the possession
and benefit of the property if, as is apparent, he assented to
or acquiesced in the removal of the property by Harris, he is
a party to the fraud of Harris, and cannot rightfully recover,
to the prejudice of Harris's creditors, who had judgment and
execution against him. Indeed, the case may be put more
strongly for the plaintiff in error, for if Carter, by way of as-
sisting Harris to defeat or defraud his creditors, placed pro-
perty in Harris's possession, and suffered him to remove it,
and were now attempting to recover the property of Harris,
he could not sustain his claim, because he was a participator
in Harris's fraud and it is a legal axiom, founded in good
sense and public policy, that in pari delicto, melior est con-
ditio possidentis. In other words, if two men conspire, or
combine to effectuate a fraudulent purpose, and to carry out
such fraudulent purpose, one places his own property in pos-
session of the other, the law will not interfere between them
it leaves the property in the hands of him who happens to
be in possession. " A party to the fraud shall not be reliev-
ed" even in chancery. 3Com. Dig. tit. Chancery, 3 M. 7,
top p. 617, bottom 644, 1st Am. from 5th Lond. ed.; 2 Vern.
602 ; Ib. 71; 2 Ves. 375.
In cases of illegal contracts, or those in which one party
has placed property in the hands of another for illegal pur-
poses, if the latter refuses to account for the proceeds, and
fraudulently or unjustly withholds them, the former must a-
bide by his loss, for in pari delicto, melior est conditio possi-
dentis" Sfc. 1 Kin. L. Com. 398-9 ; Holman v. Johnston,
Cowper'sRep. 341 ; Armstrong v. Toler, It Wheat. R. 258;
Hannay v. Eve, 3 Cranch R. 242 ; Dana's Abr. ch. 226, art.
JANUARY TERM, 1849. 163
Snodgrass v. Cabiness, assignee, &c.
18 ; Smith v. Bromby, Douglass R. 696, note ; 1 Story's
Com. on Eq. Jur. 69, 70, and note 1, on p. 70 ; Boyd v.
Barclay, 1 Ala. 34.
The circuit court erred in its charge to the jury, as it
would seem, under a misapprehension of the facts. He
seems throughout to suppose that George Swink, deceased,
or his representatives, were parties to the case, or that his
property was to be affected by the result. So far from that
idea being well founded, the administrator of Geo. Swink
had sold and parted with the property in controversy. It
had gone into the possession of Harris, under'a fraudulent ar-
rangement between him and Carter and the question was,
not as to the supposed fraud of Geo. Swink, as to whom we
were considered creditors at large, but as to the fraudulent
conduct of Harris, (as to whom we were judgment and exe-
cution creditors,) and his copartner in the fraud, Stephen
Carter.
S. PARSONS, contra.
The suit was brought, and the judgment recovered after
Geo. S wink's death, although the writ was returned execut-
ed as to him and the other defendants, who were his partners.
Under the^. fa. from that judgment, Geo. S wink's private
property was sold, and that is the title under which Snod-
grass claims.
The judgment and execution as to Geo. Swink were void.
Hood and Stinnett v. Mobile Branch Bank, 9 Ala. 335. And
there are other authorities tending strongly to sustain the a-
bove. Buchanan v. Rucker, 9 East, 191 ; Puckett v. Pope,
3 Ala. 554 ; 13 Wend. 407 j 5 J. R. 40 ; 5 Day's Rep. 527 ;
15 J. R. 143.
Cabiness claims as assignee of Carter, a bankrupt. It was
urged on the trial below, that the sale of Geo. Swink's ad-
ministrator to Carter was fraudulent. But the bank, if a cre-
ditor of Geo. Swink at all, was only a creditor at large, its
judgment and execution being void. And a creditor at large
cannot contest such a title on the ground of fraud. Gil pin v.
Davis, 2 Bibb's Rep. 416; 3 Lit. 14; 4 Monroe, 122; Dunk-
lin v. Wilkins et al. 5 Ala. 199; Wintingham v. Wintingham,
164 ALABAMA.
Snodgrass v. Cabiness, assignee. &c.
20 J. R. 296 ; Henry v. Graham, 7 Dev. & Bat. 76 ; Os-
borne v. Moss, 7 J. R. 161.
But the bank did not prove that it was even a creditor at
large of Geo. Swink, because its judgment and execution
were no proof as to him, and there was no other. For this
reason the bank had no right to have any charges whatever
from the court, or to except to any. It was not in a situa-
tion to be injured by any charge, or for the want of any.
COLLIER, C. J. The first charge assumes, that if the
slaves were the individual property of George Swink, to en-
title the defendant to set up fraud in the sale by the admin-
istrator, it was necessary for him to show that the branch
bank at Decatur was an execution creditor of Swink, or of
one of the mercantile firms of which he was a partner. Con-
ceding that it is not competent for a stranger to gainsay a
judgment against a dead man until it is vacated or annulled
by a direct proceeding, and still we think that such judg-
ment must be inoperative as against his estate, which has
passed to an administrator. The regular grant of adminis-
tration eo instanti invests the personal representative with
the assets of the deceased ; and they are not subject to sei-
zure and sale under an execution issued on a judgment there-
after rendered against the intestate. This principle of law
does not become inapplicable, by proof that the administra-
tor has converted, or fraudulently disposed of the assets com-
mitted to him. For mal-administration, he and his sureties
incur a personal liability, and there is doubtless some course
of procedure, by which, if need be, the misappropriated as-
sets may be reached and devoted by creditors, to the payment
of debts. There is then no error in instructing the jury,
that the Decatur Bank should have been a creditor of Swink,
by execution, when the slaves in question were sold by his
administrator, to enable the plaintiff to avail himself of the
alledged fraud. The sale by the bank was under an execu-
tion issued on a judgment rendered against Swink after his
death, and after his administrator had taken possession of,
and sold the slaves. Now, although the administrator's sale
may have been fraudulent, yet if the bank had no lien by an
execution at that time, it could not sell the slaves under its
JANUARY TERM, 1849. 165
Snodgrass v. Cabiness, assignee, &c.
judgment, obtained after Swink's death, when the adminis-
trator's title had vested; and consequently the defendant,
who is the vendee of the bank, is not in a condition to al-
ledge the fraud.
2. Conceding that the sale by the administrator, and pur-
chase by Carter were fraudulent, and that Harris and Carter
combined in the commission of the fraud, yet the mere fact
of Harris being in possession, would not give him a legal
right to hold the slaves as against Carter, who was the pur-
chaser from the administrator. If Carter and Harris had
been joint purchasers, and had both combined with the ad-
ministrator to perpetrate a fraud, and in pursuance of such
combination and joint purchase, Harris had taken possession of
the slaves, the principle invoked by the prayer for instruc-
tions, would perhaps have been applicable. But the charge
of the court is not asked upon this hypothesis. It assumes
that if there was a fraudulent combination between Carter
and Harris to purchase, although Carter may have purchased
individually, their fraudulent scheme, which was a matter of
joint arrangement, would subject the slaves to the payment
Harris's debts, or that Carter could not have asserted a title
against him. The maxim inpari, delicto melior est conditio
possidentis, is certainly a salutary one, but will not admit of
such illimitable tension.
In Armstrong v. Toler, 11 Wheat. Rep. 258, it was decid-
ed, that where a contract grows immediately out of, and is
connected with an illegal or immoral act, a court of justice
will not lend its aid to enforce it. So if the contract be in
part only connected with the illegal consideration, and grow-
ing immediately out of it, though it be in fact a new con-
tract, it is equally tainted by it. But if the promise be en-
tirely disconnected with the illegal act, and is founded on a
new consideration, it is not affected by the act, although it
was known to the party to whom the promise was made,
and although he was the contriver and conductor of the il-
legal act. To the same effect is the opinion delivered by me
in Carrington v. Caller, 2 Stew. 175, which, by the division
among the judges who participated in the decision, must be
regarded as the law of that case.
The prayor for instructions forestalls the inquiries of the
166 ALABAMA.
Thompson v. Merriman.
jury upon the point, whether Harris did not hold the slaves
under a subsequent contract with Carter, although there is
proof in the record tending to show that such was the fact.
If this contract was not simulated, but entered into in good
faith, there can be no doubt but Carter's title is paramount to
Harris's, though there may have been a fraudulent combina-
tion between them, which led to the purchase from the ad-
ministrator. Upon this contract Carter could have recovered
without proving his own purchase, by showing Harris's re-
cognition of his title, and undertaking to deliver to him the
slaves all which is abundantly manifest from its terms. He
would require no aid from the illegal purchase, and this may
be regarded as a fair test of his right to recover.
3. The second charge, or as it is inappropriately called a
qualification, of the prayer for instructions, is a substantial
reiteration of the first charge, and is consequently unexcep-
tionable. We have but to add, that the judgment of the
circuit court is affirmed.
THOMPSON v. MERRIMAN.
1. The landlord may maintain assumpsit against the sheriff, for money had
and received, for rent due from the tenant at the time of the levy of an
execution.
2. The sheriff cannot set up, in bar of the action, or byway of off-set, a debt
due from the landlord to the tenant
Error to the Circuit Court of Sumter. Before the Hon.
G. Goldthwaite.
ASSUMPSIT by the defendant in error. The defendant in
error leased a store house, to Philip Farris, who occupied it
as such. The plaintiff in error, as sheriff, levied an execu-
tion on the goods, and sold them, the tenant being indebted
JANUARY TERM, 1849. 167
Thompson v. Merriman.
to the defendant in error for a year's rent. The sheriff had
notice of the claim for the rent in arrears, and has retained
this amount in his hands. To recover this, assumpsit is
brought by the defendant. The sheriff resists the recovery,
on the ground, that assumpsit for money had and received
will not lie ; and also offered to prove, that the plaintiff be-
low, (defendant in this court,) was indebted to the defendant
in execution, Philip Farris, more than the amount of rent due
from him to her. The court decided, that the action could
be maintained, and excluded the evidence tending to show,
that the plaintiff was indebted to the tenant.
The ruling of the court is here assigned as error.
R. H. SMITH, for plaintiff in error.
BLISS &. BALDWIN, contra.
DARGAN, J. It has been repeatedly held by this court,
that the act of 1807, (Clay's Dig. 210,) which prohibits the
taking of any goods, and chattels, by virtue of any execution,
against the tenant, from off the demised premises, unless the
plaintiff in execution will pay, or tender to the landlord as
much as one year's rent, if so much be due, and in arrears,
gives the landlord a lien on the goods of the tenant. Den-
ham & Wafford v. Harris, 13 Ala. 465 ; Whidden v. Toul-
min, 6 Ala. 104 ; Thompson v. Spinks, 12 Ala. 155 ; Dulany
v. Dickerson, Ib. 601. But being a mere lien, it gives to the
landlord no title to the goods upon which he can maintain
trover, detinue, or trespass, if they be taken from the defend-
ant's possession, or be sold or removed by him.
The plaintiff, therefore, although she gave notice to the
sheriff of her demand for rent, could not bring either of those
actions, because she had no title to the goods. She certain-
ly, however, had the right to have her demand for rent satis-
fied before they were removed ; but as this right was not re-
garded by the sheriff, the question arises, what remedy has
she to enforce it ? In the case of Denham & Wafford v.
Harris, before referred to, the landlord filed a petition, in the
circuit court, praying that the sheriff might be ordered to pay
to him the rent in arrears, out of the money received on the
sale of the goods. The prayer of the petition was allowed.
168 ALABAMA.
Thompson v. Merriman.
It is true, that the question as to the remedy, in that case,
was not made by the counsel, nor noticed by the court ; but
we find that other courts on similar statutes, have entertained
a similar practice. In 18 Johnson, 1, a sheriff levied on the
goods of a tenant, and sold them under execution ; the land-
lord moved the court to have his rent satisfied from money
arising from the sale. The motion was granted. The same
remedy was allowed in the case of Beckman v. Lansing, 3
Wendell, 444.
In Haskins v. Knight, 1 M. & S. 245, the landlord ob-
tained a rule against the plaintiff in execution, to show cause,
why the sheriff should not pay to him the rent in arrears, out
of the proceeds of the sale of the tenant's goods, seized by
the sheriff on the premises; and it being shown, that at the
time of the levy, there was rent due the landlord, the rule
was made absolute, and the sheriff ordered to pay it.
These decisions, made upon statutes similar to ours, show,
that the landlord is entitled to receive from the sheriff, out of
the proceeds of the goods in his hands, the rent due him from
the tenant at the time of the levy; and it must follow, that
if the landlord is entitled to be paid one year's rent out of
this fund, by an application to the court, the sheriff who has
it in his possession, must have money which belongs to the
landlord, and therefore he has money for his use.
But it is objected, that there is no privity of contract be-
tween the sheriff and the landlord. The only privity that
need be shown in this action, is, that which is implied by
law, from the fact, that the defendant has money in his
hands, which belongs to the plaintiff. 15 Cow. 52; 17
Mass. 563 ; Ib. 579 ; 5 Cow. 71.
It is supposed, however, that the case of Dulany v. Dick-
erson, 12 Ala. 601, is opposed to the view here taken. But
the facts of that case, differ widely from the facts in the
cause before us. There, the tenant had sold the goods to a
stranger, and he had obtained possession of them. The
goods remained in specie, in the hands of the vendee, and it
is very clear to my mind, that he could not be said to have
money for the use of the landlord. The vendee of the ten-
ant, retaining the possession of the goods, bore perhaps the
same relation to the landlord, that the vendee of the sheriff
JANUARY TERM, 1849. 169
Pollard et al. v. Merrill & Eximer.
does, if both had notice of the lien, but neither of them could
be considered, from having the goods in possession, as hav-
ing money for the use of the landlord.
2. We think also, that the court correctly rejected the ev-
idence offered by the sheriff, tending to prove, that the plain-
tiff was indebted to the tenant, for goods sold and money
lent. If these debts could be asserted by the sheriff, in bar
of this action, of course they must be considered as compen-
sated, or extinguished in the hands of the tenant, although
they might not even be allowed by the jury. For if they
can be legally given in evidence to defeat this action, and in
fact have been, the tenant could not sue on them afterwards ;
and to permit the sheriff to defend himself by giving these
debts in evidence, would be to bind the rights of one not a
party to the record.
The authorities relied on by the plaintiff in error, do hold,
that a surety when sued, may, with the consent of the prin-
cipal, prove by way of set-off, a debt due from the plaintiff
to the principal. These decisions extend the doctrine of
equitable defences as far as we can go. yet they do not war-
rant the sheriff, in defending himself, by proving that the
landlord was indebted to the tenant. The plaintiff in error
is neither the security of the tenant, nor does he assert these
counter claims with his consent.
We can perceive no error in the ruling of the court, and
the judgment must be affirmed.
POLLARD ET AL, TRUSTEES, <fcc. v. MERRILL & EXIMER
1. To create a separate estate in a married woman, a clear and manifest in-
tention must appear, on the face of the instrument, to exclude the mari-
tal rights of the husband.
2. The intervention of a trustee, in cases, where by the terms of the instru-
ment, the marital rights of the husband ore not excluded, and he is allowed
Vol. 1522
170 ALABAMA.
Pollard et al. v. Merrill & Eximer.
the use and enjoyment of the property, will not convert his estate therein,
into a mere equity.
3. A provision, in a marriage contract which does not create a separate es-
tate in the wife, in restraint of the husband's right to alienate the person-
al property therein embraced, is void.
4. A marriage contract by which the personal property of the intended wife
is conveyed to trustees, to have and to hold, "for the separate and exclusive
vse, benefit and maintenance," of her and her husband, "during their joint
lives, in no wise liable, or subject to him," the said husband, "or to the
payment of any of his debts, or liabilities now, or hereafter existing," does
not create a separate estate in the wife, but vests such an estate in the
husband, as, when reduced to possession, is liable to execution at law.
Error to the Circuit Court of Montgomery. Before the
Hon. J. D. Phelan.;
THIS was a trial of the right of property in certain slaves,
and horses, levied on under an execution in favor of defend-
ants, and claimed by plaintiffs in error, as the trustees of Mrs.
Sarah Ann Pollard, wife of Wm. H. Pollard, the defendant in
execution. The cause was submitted to a jury, who found
a special verdict as follows : " They find that the negroes
and horses levied on were on the plantation on which the
defendant in execution lived, and were under his control and
management, and have been since his marriage ; that the
said negroes and horses are the same named and described in
the deed of marriage contract hereto appended and copied ;
that the marriage contemplated and named in said contract
took place shortly after the execution of said contract, or
deed ; that said marriage contract, or deed, was executed at
the time it bears date, and before the marriage, and is in the
following words:" (Here follows a copy of the marriage con-
tract, the material parts of which are sufficiently set out in
the opinion of the court, for a full understanding of the ques-
tion it presents.) After assessing the separate value of the
negroes and horses, the jury say further, " that if, upon these
facts, the law is with the plaintiffs, they find for the plain-
tiffs ; if on the contrary, it is with the claimants, then they
find for the claimants."
The court thereupon rendered judgment for the plaintiffs
in the execution, which is now assigned as error.
JANUARY TERM, 1849. 171
Pollard et al. v. Merrill fc Eximer.
JOHN A. ELMORE, for plaintiff in error.
Under the deed to claimants, what is the interest taken by
Wm. H. Pollard, and is it such, or in such condition, that it
can be sold under execution at law, or must the creditor re-
sort to a court of chancery to separate it ? We insist that
this deed is materially variant from those referred to by
counsel for claimants. In Cook v. Kennedy and Smith, the
trust was to the use of the wife and husband. In Bender v.
Reynolds, to and for the joint and equal use, benefit and be-
hoof of wife and husband. In Easly v. Moss, that the trus-
tees should pay to the husband the profits, &c. for the joint
maintenance of himself and wife. In none of these cases is
the dominion of the husband excluded, but in the declara-
tion of the uses, it is in fact asserted. Much stress is laid by
the court, on the use of the term joint in the latter case ; and
if such force is given to this expression, we ask that the same
effect be given- to the terms separate and exclusive, when
used in the same place and manner, as denoting the interest
of the wife, and dominion of the husband. We admit that
Pollard, the husband, takes under this deed, an interest that
can be subjected for his debts, but not at law. And the first
question is, does he take the entire beneficial interest in the
property, or is there any portion vested for the use or main-
tenance of the wife, over which he has no control. We
look to the whole of the deed to ascertain this, if in the de-
claration of the uses there is any ambiguity. " To the sep-
arate and exclusive use, &c., and maintenance of wife and
husband." Does this mean joint use and maintenance, or
sole use and maintenance of the husband ? if either is so
plain from the words themselves, then the wife's interest is
excluded, and the husbands dominion asserted. But we in-
sist that the terms are not ambiguous, but clearly give to the
wife a separate and exclusive interest from her husband, for
her use, benefit and maintenance, and although the extent of
this interest is not declared clearly, this will not deprive her
of it. The plain and obVious meaning is, that the property
is conveyed in trust for the separate and exclusive use, bene-
fit and maintenance of the wife, not subject to the debts or
control of the husband, and a use is also given to the husband.
Can the interest given in this manner to the wife be taken
172 ALABAMA.
Pollard et al. v. Merrill & Eximer.
from her. The construction of the deed is, that they take
equal interests in the property, the interest of the wife to her
separate use and maintenance, or that she takes an interest
sufficient for her maintenance and if either, then the trust
is fastened on each portion of the property, and a sale of any
part under execution, would destroy the trust. It is clear
that the deed could have been drawn giving such an interest
to the wife, and the rest of the use to the husband. Has it
done so in this case ? The rest of the deed confirms this
view. The whole tenor of it shows this intention to secure
apart of it to the wife, and excluding the dominion of the
husband from her portion.
N. HARRIS, WATTS and JACKSON, for the defendants.
1. It is an incident of the ownership of property, that it
shall be subject to the payment of the debts of the owner,
either at law, or by a proceeding in equity.
2. To exclude the marital rights in the property of a mar-
ried woman, a clear intention, that it shall be to her
separate use, must appear in the declaration of use. Lumb
v. Milnes, 5 Ves. 517; 2 Story's Eq. 1381-2; Hoskis v.
Coalter, 2 P. 463 ; Lamb v. Wragg & Stewart, 8 Ib. 73 ;
The Bank v. Wilkins, 7 Aln. 418 ; O'Neil v. Teague, 8 Ib.
345.
3. No such intention is shown by the deed in the case at
bar.
4. It is an inseparable incident of a separate estate in the
wife, that the husband has no interest in, or control, or do-
minion over it. Cook v. Kennerly &/ Smith, and Moss v.
McCall, and Bender v. Reynolds, 12 Ala. 46, 446, and 630,
and cases there cited.
5. It will appear by an examination of the deed in ques-
tion, that it gives the husband an interest in, and control and
dominion over the property.
6. The chattel interests of the wife, when reduced to the
possession of the husband, are his property. There can be
no partnership, or community of goods between husband and
wife ; they cannot hold as joint tenants, or as tenants in com-
mon. 2 Black. Com. 182 ; Barber v. Harris, 15 Wend. 617;
Bender v. Reynolds, supra.
JANUARY TERM, 1849. 173
Pollard et al v. Merrill & Eximer.
7. When an interest in property is given collectively to a
married woman and her children, the interest acquired by
the husband, in virtue of his marital right, can only be reach-
ed in equity, where the respective interests of the wife and
children can be ascertained and separated. Fellowes v. Tann,
9 Ala. 1002 ; Spears v. Walkley, 10 Ib. 328 j Rugely & Har-
rison v. Robinson, 10 Ib. 702.
8. When the husband has a beneficial interest, coupled
with the possession of the property, his own life estate, and
the life estate of the wife, so far as the latter is reduced to
possession, may be sold to pay his debts, under execution a-
gainst him at law. Cook v. Kennedy & Smith, Bender v.
Reynolds, and Moss v. McCall, supra, and authorities there
cited.
CHILTON, J. According to the settled law, as recogniz-
ed by numerous decisions of this and other courts, the facts
set forth in the special verdict of the jury, fully sustain the
judgment thereupon pronounced by the court, as we will
briefly proceed to show.
In Cook v. Kennerly, 12 Ala. Rep. 42, 46, it is said, "it is
an inseparable incident to a separate estate in the wife, that
the husband has no control or dominion overjit ;" and the ca-
ses all agree, that while no particular form of words is neces-
sary to the creation of a separate estate, yet there must ap-
pear upon the face of the instrument, a clear and manifest in-
tention to exclude the marital rights of the husband. Lamb
v. Wragg and Stewart, 8 Porter, 73; Dunn and Wife v. The
Bank of Mobile, 2 Ala. 152; Inge v. Forrester, 6 Ib. 418;
Bank v. Wilkins, 7 Ib. 589 ; O'Neal v. Teague, 8 Ib. 345 ;
Anderson v. Hooks, 1 1 Ib. 954 ; Cook v. Kennerly, supra;
Bender v. Reynolds, 12 Ib. 446 ; Spear v. Walkley, 10 Ala.
328; Moss v. McCall, 12 Ib. 630; Hale v. Stone, at the last
term, and Machen v. Machen ; also, Lenoir v. Rainey at the
present term. See also, Clancy's H. & W. 262.
A trust for the separate use of the wife may be declared,
either in express terms, or it may be inferred from the man-
ner in which the property is to be enjoyed, or the directions
given concerning its management. Hill on Trustees, 420.
But in either case the " intention must be clearly and une-
174 ALABAMA.
Pollard et al. v. Merrill & Eximer.
quivocally expressed,'' to create a separate estate, in order to
exclude the husband. It is said by the same authority, that
in modern times the judges have required much more strin-
gent expressions for this purpose than were once considered
sufficient. So in Tyler v. Lake, 2 Russ. & Mylne, 189,
Lord Brougham said, the language used should leave no
doubt of the intention, and must be such as to forbid the
court to speculate on what the probable object of the donor
might have been. See also, Blacklavv v. Laws, 2 Hare, 49 ;
Thompson v. McKissick, 3 Hum. 631. " The purpose,"
says Judge Story, " must clearly appear, beyond any reason-
able doubt ; otherwise, the husband will retain his ordinary
legal, marital rights over it." Story's Eq. 1381; 2 Roper
Leg. 370; 19 Ves. 416; 4 Madd. 419.
The decisions from our own court, already cited, fully
sustain the position that the intervention of a trustee, in
cases where the marital rights of the husband are not ex-
cluded by the terms of the deed, and where the property it-
self, (being personal,) is to be used and enjoyed by him, does
not have the effect to change his estate into a mere equity,
which can only be made subject to his debts by a resort to
chancery. Such were the decisions in Carleton & Co. v.
Banks, 7 Ala. Rep. 32 ; Cook v. Kennedy, Bender v. Rey-
nolds, Moss v. McCall, and Hale v. Stone, supra ; also, Le-
noir v. Rainey, at this term.
Again : it is a well settled principle, that a restraint upon
the alienation of personal property, except in the case of a
separate estate in a married woman, is void. See the cases
above cited, and Brandon v. Robeson, 18 Ves. 429. So
that, unless by the terms of the deed, the husband is ex-
cluded by the creation of a separate estate in the wife, the
property must be subject to his debts, notwithstanding the
provision in the deed expressly to the contrary.
It is further a canon of the common law, that there can be
no partnership or community of goods between husband and
wife. Her personal chattels vest absolutely in him, and if a
conveyance of real estate be made to them jointly, they are
said to be seized per tout, and not per my, that is, each is
seized of the whole, and if one die, the survivor takes the en-
tirety. 2 Black. Com. 182; 8 Cow. 277; 19 Wend. 617; 12
JANUARY TERM, 1849. 175
Pollard et al. v. Merrill & Eximer. " ~~
Ala. Rep. 48; TYerg. 319; Co. Lit. 187, b.; 16 Johns. R.
115; 5 Johns. C. Rep. 427; 5 Mass. 521; 3 Randolph, 179.
" They take but one estate, as a corporation would take, be-
ing by the common law deemed but one person, and the es-
tate continues in the survivor the same as if one of the cor-
porators were to die." Saul v. Campbell, 7 Yerg. Rep. 319 ;
5 T. R. 652 ; 1 Dana, 37; Ib. 243 ; 2 Kent's Com. 132 ; 4
Ib. 362.
Applying the principles thus hastily educed to the facts as
found by the special verdict of the jury, we are bound to de-
clare that the deed in question does not vest in Mrs. Pollard a
separate estate, but on the contrary, vests the property in
William H. Pollard, the husband. It is true, that in the re-
citing part of the agreement, it is said to be made, " that all
the property above named, with the future increase and addi-
tions, should be secured to the use and exclusive benefit of
the intended wife ;" but how was this object to be effected ?
The agreement gives the answer, by following the declara-
tion of this intent with the words, "in the manner hereinaf-
ter mentioned" It then proceeds to convey the property to
John C. Webb and Charles T. Pollard, " to have and to hold
the same upon the trust, and to the intent and purposes here-
inafter expressed, viz : for the separate and exclusive use,
benefit and maintenance of the said Sarah Ann Webb and
the said William H. Pollard, during their joint lives, in no
wise liable, or subject to him, the said William H. Pollard,
or to the payment of any of his debts or liabilities, now or
hereafter existing." It is then provided that if the said Pol-
lard should die, the wife surviving, she should hold for life,
and at her death, the same shall vest in, and descend to, the
issue of said Sarah Ann and William H., but in default of is-
sue at the death of said William, the property is 'to vest ab-
solutely in the wife. In the event of the death of the wife,
the property is to vest in the husband, under the same limi-
tations as are above stared in respect to the wife. Now, it
would be a contradiction in terms, to say that the wife can
take a separate estate under a deed which conveys to her and
her husband a joint estate. If she has a separate estate in
the property, then the husband must be entirely excluded ;
but the declaration of trust expressly provides that he shall
176 ALABAMA.
Pollard et al. v. Merrill & Eximer.
participate equally with the wife, in the use and benefit of
the property; and they are both placed upon precisely the
same footing, as respects the survivorship and the ultimate
fee.
It is most manifest, then, that the intention was, not the
exclusion of the husband from the benefit of the estate, but
to place the property in a condition in which it would not be
liable for the husband's debts, nor subject to be sold by him.
We speak of the intention, only so far as we can arrive at it
from an analysis of the whole instrument. The substance of
the whole deed is, that the legal title shall vest in the trus-
tees, but the joint use of the property in the husband and
wife, during their lives, and to the survivor for life, in the
event of issue, and in default of issue, to the survivor in fee
exempting the property from the husband's debts, and re-
straining its alienation, except under certain restrictions
therein prescribed.
Had the use been declared in favor of the intended wife,
even in the absence of words excluding the husband in that
clause of the deed, we should hold that the other portions of
the instrument would constitute a sufficient indication of an
intention to exclude him from any control or dominion over
the property ; but being to husband and wife jointly, we
must either deprive the husband of all benefit under the deed,
or give him the entire life estate. They cannot take moie-
ties, but at law the wife's interest vests absolutely in the
husband.
This case must not be confounded with that class of cases,
where property is given to be enjoyed by the husband and
his wife and children, or for the support and maintenance of
the wife and children ; for although the husband may in
such cases acquire a right to, or interest in the property,
which can be subjected to his debts if capable of separation,
yet the creditor must resort to a court of chancery to separate
such interest. In cases of that character, the law will not
permit the trust to be defeated in respect to third persons, by
a sale of the property under execution. Such were the cases
of Fellows et al. v. Tann, 9 Ala. Rep. 1002; Spears v.
Walkley, 10 Ib. 328 ; Rugely & Harrison v. Robinson, Ib.
702 ; Jasper & Maclin v. Howard, trustee, 12 Ala. Rep. 652;
JANUARY TERM, 1849. 177
May v. May.
and Lavender et al. v. Lee, 14 Ala. Rep. 688. In the case
before us, the husband and wife are the sole beneficiaries ;
the use is vested in them for life. The property is placed in
possession of the husband, whose marital rights not being ex-
cluded, immediately attach, and all the interest o'f the wife
vests in him for his life. There is no interest then, to be se-
parated from his, and therefore no necessity for a resort to a
court of equity.
Whether if the deed, through a mistake of the scrivener,
fails to speak the true intention and meaning of the parties,
it may not be reformed in a court of chancery, we need not
now inquire, as the question does not properly arise. See,
however, 1 Ala. Rep. (N. S.) 170; 8 Ib. 533; 14 Ib. 693.
Neither will we investigate the grave question whether a
court of chancery will interfere . to correct such mistake as
against a subsequent bonafide creditor whose debt may have
been contracted upon the faith of the property so assured.
Confining our opinion to the case before us, and the facts
presented by the special verdict, we are constrained to declare
there is no error in the judgment. It must therefore be af-
firmed.
DARGAN. J., dissenting.
MAY v. MAY.
1. Where M. dies, leaving a widow, and three children, each of whom had
been advanced in their father's life time, and, on a final settlement of the
estate, one of the children brings his advancement into hotchpot, but the
other two refuse to do so, the distributive share of the widow is not in-
creased thereby, but is to be ascertained by reference to the number of
children, whether all of them share in the distribution or not
Rrror to the Orphans' Court of Greene. Before the Hon.
Sydenharn Moore, Judge.
Vol. 1523
178 ALABAMA.
~ May v. May.
THIS case arose upon a final settlement in the orphans'
court of Greene county, of the estate of William May, de-
ceased. From the record it appears, that the deceased left a
widow, the plaintiff in error, and three children, viz : the de-
fendant in* error, Moody H. May, and John H. May ; that on
the final settlement of the estate of said William May, de-
ceased, there was found in the administrator's hands, subject
to distribution, the sum of $1,723 65 ; that each of said chil-
dren had received advancements from their father in his life-
time ; that the defendant in error, who had been advanced
two slaves of the value of $500, brought his said advance-
ment into hotchpot, but the said Moody H. and John H. re-
fused to do so, &c.
On this state of facts the court decided, that the plaintiff
in error was entitled to only one-fourth of the sum of money
in the hands of the administrator, and rendered a decree ac-
cordingly. This is now assigned as error.
H. I. THORNTON, for plaintiff in error.
In this case there is but one error assigned. In the settle-
ment of the estate in the orphans' court, the widow was al-
lowed in the distribution, only one-fourth ; there being three
children, and two of them having appeared and waived their
claim to any share, on the suggestion that they had been ad-
vanced by the intestate.
The main point to be settled is, does the act of distribution
intend to make the widow homologous with the children in
the matter of distribution, or merely to make the number of
children, without regard to their being distributees, or not,
a criterion to ascertain the amount to be allotted to her. To
maintain the first part of this alternative, I cite the case of
Edings v. Long, 10 Ala. 205.
If the widow is identified with the children as a distribu-
tee, she ought to have all the benefits of that character ; and
but for the stringent terms of our statute, limiting her share
to the residue of the estate left after the payment of the debts,
it might be well contended that she would be entitled to the
benefit of advancements, as is the case in North Carolina.
See Taylor's Rep. 213.
I rely strongly on the distinction, where there is a certain
JANUARY TERM, 1849. 179
May v. May.
fixed proportion of the estate left by the deceased to be al-
lotted to the widow, and where she is to receive a share that
is dependent on the number of children, distributees. The
rule, under the English statute under the customs also of
York and London and in many of the states, where a fix-
ed part of the estate left by the deceased, is given to the wid-
ow, I admit to be, that where the advancements are brought
in, the widow gets no benefit of them, because they form no
part of the estate left by her deceased husband, to which alone
she is expressly limited. So also, I admit the rule to be, un-
der the same state of law, that if advancements be brought
in, but such advanced children waive any claim, it is imma-
terial to the widow what becomes of the remainder of the es-
tate, left after she received her certain and fixed amount of
what was left by her husband. In conformity with this
view is 20th Pick. 67, and Williams's ex'rs, vol. 2, chapters
on Distribution under statute, and by the custom, &c.
My conclusion is, that where equality and a fortiori, where
more than equality is established by law, between the widow
and the children, the amount varying with the number of the
latter, then the widow should in the distribution, get as much
as any child gets, of the subject of distribution, which in this
state is the surplus, or residue of personal estate, left after
paying the debts of the deceased.
J. B. CLARKE and B. F. PORTER, contra.
The case of Logan v. Logan, adm'r, 13 Ala. 653, we con-
sider as conclusive of the case. If the widow can claim no-
thing from an advancement when brought into hotchpot, it
necessarily follows that her rights cannot be enlarged by any
one one or more of the children declining to bring in their
advancements, and come into the distribution.
The widow's share is necessarily ascertained before the
question of advancements can come up. The counsel for
th<; plaintiff imagines, that the children mentioned in the
statute of 1826, are those who come into the distribution ;
but this idea receives no countenance from the statute itself.
Her share is evidently to be ascertained by first ascertaining
the number of children, and descendants of deceased chil-
dren, if any, left by the decedent at his death, whether they
180 ALABAMA.
May v. May.
choose afterwards to come into the distribution with the oth-
er children or not. This is the necessary import of the lan-
guage used.
This position is sanctioned by Williams on Ex'rs, 2 vol.
1102, edition of 1841, Library copy, 949, under the custom
of Londen, where it is said, '-if one of several children be ful-
ly advanced, the effect is, to remove that child entirely out
of the way, and to increase the share of the others, and not
of the dead man's part." This being a rule under the cus-
tom, authorizes us to apply it in the construction of our sta-
tute, as the construction of our statute is properly governed
by the construction of the English statute, which has been
always governed by the practice under the custom. See Kir-
cudbright v. Kircudbright, 8 Ves. 64.
The idea that in ascertaining the share of a widow who
dissents from the will of her husband, a child who is disin-
herited under the will, could not be noticed as a child, may
have credit for its originality, but not as a canon of distribu-
tion.
COLLIER, C. J. In Logan v. Logan, adm'r, 13 Ala. R.
653, it was decided that the widow can claim nothing from
advancements made by the husband to his children, and by
them brought into hotchpot. This conclusion was attained
upon the construction of the statute of distributions of 1826,
and of the acts of 1822 and 1828, which provide for children
of intestates, who have been advanced, bringing their ad-
vancements into hotchpot, and the mode of valuing such ad-
vancements, &c. We also examined the English statute of
distributions of the 22 and 23 Car. 11, ch. 10, and kindred en-
actments in several of the states of the Union, with decisions
adjusting their interpretation. It was added as a clear deduc-
tion from these, that " our act of 1826, we have seen declares,
the widow's share in the estate of her deceased husband,
which shall be left after the payment of his debts, and the
previous statutes of distribution of 1806, and 1812, only ope-
rated upon the surplus. The statute of 1822, which we
have cited, requires the children of the intestate to bring their
advancements into hotchpot, where they "shall choose to
come into the partition of the estate with the other parce-
JANUARY TERM, 1849. 181
May v. May.
ners." What is said in the act of 1826 in respect to the
widow being entitled to "a child's part," where there are
not more than four children, is restricted by the preceding
part of the section to " a child's part," or, in other words, to
a share of the decedent's estate proportioned to the number of
children, which may remain subject to distribution after his
debts are paid. This conclusion is not attained by an appli-
cation of the principles of construction, but is the clear result
of the language employed."
The English statute of distributions is quite as expansive
in its provisions as the several enactments of this state, and
as it respects the effect of advancements, may furnish a guide
for their construction. After providing in what manner the
estate of a person dying intestate shall be distributed between
his wife and children, it directs that advancements made to
any of the children by the intestate, shall be taken into the ac-
count, if those thus advanced shall claim a share in the estate,
so as to make the portions allotted to the children, or their re-
presentatives, equal, as near as may be. 2 Wms. on Ex'rs,
906. " The end and intent of the statute was, to make the
provision for all the children of the intestate equal, as near as
could be estimated." Id. 917, 918. " If one of the several
children be fully advanced, the effect is to remove that child
entirely out of the way, and to increase the shares of the oth-
ers, and not of the dead man's part. If any of the children
shall have been advanced partially, they must bring their
portion into hotchpot, before they can derive any advantage
from the custom. But such partial advancement, like a full
advancement, shall be brought into hotchpot with the orphan-
age part only. Therefore, the children who have been par-
tially advanced, shall bring their portion into hotchpot with
the other brothers and sisters only, and not with the widow :
for the principle is, as also with respect to the statute of dis-
tributions, to make an equality among the children, and not
to benefit the widow. Id. 949. See also, Id, 919; 2 Step.
Com. 255.
This equitable provision, it has been said, was derived in
England from the collatio bonorum of the imperial law ; which
it certainly resembles in some points, though it differs wide-
ly in others. But with regard to goods and chattels, it is
182 ALABAMA.
~ May v. May.
"part of the ancient custom of London, of the province of
York, and of the sister kingdom of Scotland; and with re-
gard to the lands descending in coparcenary, that it has al-
ways been, and still is, the common law of England, under
the name of hotchpot." 2 Wms. on Ex'rs, 918. These are
the customs to which reference is made by the same learned
author in the preceding paragraph. See Lord Kircudbright
v. Lady Kircudbright, 8 Ves. 64.
From this view of the law, we think it obvious, the dis-
tributive share of the widow in the estate of her deceased
husband, under the act of 1S26, where there are not more
than four children, is to be ascertained by a reference to the
number of children. The extent of their advancements, or
whether they shall elect to bring them into hotchpot, can
have no influence upon the share to be allotted to her. This
is ascertained by the statute, and is a "child's part," sup-
posing all the children to participate equally with herself in
the estate which may remain after the payment of the debts.
She can neither gain nor lose by the advancements being
brought in or withheld. The children advanced must elect
whether they will come into the distribution, and cannot be
coerced ; if they come in. the court will see that they share
equally in the fruits of their father's acquisitions. Equaliza-
tion of their portions, is the object to be effected by bringing
ing their advancements into hotchpot, and the widow, we
have seen, can derive no benefit from them.
If any of the children have been advanced, and decline to
come in for a further portion, the reasonable inference is, that
they would not be benefitted by such an arrangement, or if
they would, that they are willing to yield up the prospect to
the other children. If the former motive influenced them,
and they really have been fully advanced, then the residue
of the estate, after allotting to the widow the share which
the statute prescribes, would be necessary to make the chil-
dren who seek a distribution, equal participants with the oth-
ers in their father's bounty. If the latter motive supposed,
prompted the advanced children to ask nothing more, then
the widow can claim nothing from an act of liberality which
did not inure to her benefit. This view will serve to show,
that the term ''children," where it occurs in the statute, can-
JANUARY TERM, 1849. 183
McGehee, garnishee, v. Walke.
not be restricted to such as may come in for a distributive
share of the estate. There is nothing in the letter of the act
to require such a construction, and we think it unauthorized
by the judicial expositions of such enactments elsewhere.
As the case at bar arises upon the distribution of an intes-
tate estate, it is not necessary to inquire whether, where the
widow dissents from her husband's will, a disinherited child
shall be numbered among the testator's children, in appor-
tioning the widow's share. The result of what we have
said is, that the judgment of the orphans' court must be af-
firmed.
McGEHEE, GARNISHES, v. WALKE.
1. A plaintiff in garnishment, as against the garnishee, is substituted mere-
ly to the rights of his debtor, and can not subject a demand, on which the
debtor himself, if sueing, would not be entitled to recover.
2. If McG., having purchased; at execution sale, the equity of redemption of
F. in a tract of land, which F. had previously mortgaged to G. as securi-
ty for a debt, agrees with F. to divide with him the rents of the land, so
long as he retains the control of it, in consideration, that F. will defend
a bill of foreclosure, filed by the administrator of G., and furnish proof,
that will reduce the debt of, G. to one half the amount claimed, and, in
pursuance thereof, F. files his answer to the bill, but fails to furnish any
proof whatever, and a decree is rendered for the full amount, it is such a
failure of consideration, on the part of F., as discharges McG. from his con-
tract.
Error to the Circuit Court of Perry. Before the Hon. J.
D. Phelan.
THE facts in this case are fully stated in the opinion of the
court.
184 ALABAMA.
McGehee, garnishee, v. Walke.
E. W. PECK, for plaintiff in error.
1. When this case was before in this court, it was held that
a demand against a garnishee could be subjected to process
of attachment only where a debt actually existed that it
must be such a demand as would enable the creditor himself
to maintain either debt or indebitatus assumpsit. 11 Ala.
Rep. 276.
2. The agreement between the plaintiff in error and Falls
was an entire thing, and by it Falls was entitled to half the
rent of the land, or he was entitled to nothing. Therefore,
the charge, that if there was a partial performance of the
agreement on the part of Falls, the jury might proportion
their finding according to the benefit the plaintiff in error
had received by reason of such partial performance, was erro-
neous.
3. The consideration for the agreement, on the part of the
plaintiff in error, to divide the rent, was the promise of Falls to
prove a partial failure of the consideration of the note, on the
trial of the chancery suit spoken of in the evidence of the
witness Lee. If, therefore, Falls wholly failed and neglected
to prove that fact, then there was a failure of the considera-
tion upon which the agreement was founded, and conse-
quently no recovery could rightfully be had in this case. For
this reason, the first charge asked, and refused, should have
been given. Walke v. McGehee, 11 Ala. Rep. 277.
4. It was not only admitted by the defendant on the trial,
but insisted upon before the jury, that the object of the
agreement by both parties, was to postpone the decision of
the said chancery suit, in order that they might in the mean
time divide the rents and profits of the land. The court,
therefore, should have charged the jury, that the contract
was illegal and void, without adding, that if the jury be-
lieved, delay was only expected or even desired as a conse-
quence only, and that they intended to defend the said suit
for a partial failure of consideration, that, then, the agree-
ment would not be void ; because, this object being admit-
ted, it was a fact upon which the court should have pro-
nounced the law, without referring it to the jury to ascertain
what might have been the expectations or desires of the par-
ties, and thus determining the legal character of the contract,
JANUARY TERM, 1849. 185
McGehee, garnishee, v. Walke.
not by the admitted fact, but by what the jury might be-
lieve to have been the expectations or desires of the parties.
5. The charge asked by the plaintiff in error, that if the
corn received for the rent of the land for the year 1843, had
been used by him, that then he would not be liable in this
suit for the proportionate value thereof, should have been
given to the jury because the plaintiff and Falls were ten-
ants in common of the corn. Falls, therefore, could not, on
this hypothesis, have maintained indebitatus assumpsit
against the plaintiff in error. His remedy would have been
either, by action of account, trover, special action on the
agreement, or by bill in equity. If however, the corn had
been actually sold by the plaintiff in error, and the price re-
ceived in money, then the action of indebitatus assumpsit
might have been maintained. Cochran v. Carrington &/
Prall, 25 Wendell's Rep. 409 ; 2 Caine's Rep. 166 ; 15 John.
Rep. 159; 9 Mass. Rep. 538; 3 Pickering, 420; Rains v.
McNairy, 4 Humph. Rep. 356 ; Weld v. Oliver, 21 Picker-
ing, 559 ; White v. Osborn, 21 Wend. Rep. 72.
BROOKS, contra. 1. The overruling of the demurrer can-
not be assigned as error : it was filed to the issue tendered
upon the first answer since then, the cause was tried in the
circuit court, and its judgment reversed by the supreme
court a new answer was filed by the garnishee that an-
swer was contested, and a new issue formed without the in-
terposition of a demurrer. The first issue tendered was
good. Myatt et al. v. Lockhart & Massey, 9 Ala. R. 91.
2. The stipulations in the contract are independent, and
Falls was entitled to recover without proof of performance of
his part of the agreement. Walke v. McGehee, 11 Ala. Rep.
273.
3. The partial performance of his agreement by Falls, was
beneficial to McGehee in delaying the chancery suit, and
thereby enabling him to obtain the rents of the Fluker land
for the years 1843, 1844 and 1845; therefore, McGehee is
bound to pay for the partial performance. Chit, on Con. 161,
276, 277.
4. One tenant in common may maintain trover against his
Vol. 1524
186 ALABAMA.
McGehee, garnishee, v. Walke.
co-tenant for the sale, destruction, or consumption of a chat-
tel. Wilcox & Gibbs v. Reed, 3 Johns. 174. Therefore,
Falls could have maintained trover against McGehee, for his
use and consumption of the corn. And where one takes the
goods of another, and converts them without the owner's
consent, the tort may be waived and assumpsit will lie, al-
though there was no contract. Hill v. Davis, 3 New Hamp.
384 ; Floyd v. Wiley, 1 Miss. 430 ; Labeaurn v. Hill, Ibid.
643 ; Cunningham and wife v. Noyes, 10 Mass. 435 ; 4 Esp.
Rep. 30.
5. The court did not err, in submitting to the jury the
question, whether the corn was used by McGehee or not.
And a fair construction of the bill of exceptions shows that
circumstances were in proof which authorized the jury to
find that fact against the garnishee.
6. One tenant in common may maintain assumpsit for rent
against his co-tenant. 9 Mass. 538; Walke v. McGehee,
supra.
CHILTON, J. The plaintiff in error was summoned as a
garnishee, to answer what he was indebted to John Falls,
against whom the defendant in error had sued out an attach-
ment in the circuit court of Perry. He answered the gar-
nishment, denying an indebtedness, and the same being con-
troverted upon the oath of the opposing party, an issue was
made up between the plaintiff in the attachment and the
garnishee under the statute, and was tried by a jury. The
jury found against the garnishee, and a judgment upon their
verdict was rendered against him for the sum of $157 25.
To reverse which, the case is brought to this court.
1. The questions for revision are presented by a bill of ex-
ceptions to the charges refused, and instructions given by the
court. It appears by the proof set out in the record, that
McGehee had purchased of Falls a tract of land. An execu-
tion upon a judgment which constituted a lien on said land,
being about to be levied, McG. had it levied on another tract
of land which Falls had before that time mortgaged to one
Gormon to secure a debt due from Falls to him. The equity
of redemption of Falls in this last named tract of land, which
is designated in the bill of exceptions as the Fluker tract,
JANUARY TERM, 1849. 187
McGehee, garnishee, v. Walke.
was sold by the marshal, and purchased by McGehee. After
this purchase by McGehee of the equity of redemption, Wise-
ner, the administrator of Gormon, the mortgagee, filed his
bill for a foreclosure of the mortgage. McGehee and Falls
then entered into a contract, the terms of which, as near as
we can gather them from the proof in the record, are as fol-
lows : Falls having represented to McGehee that the consid-
eration of said mortgage debt to Gormon had failed to the
extent of about one half the debt, which he was able to prove,
agreed with McGehee that he would defend the suit and
make the said proof so as to reduce the mortgage demand, in
consideration that McGehee would divide with him the rent
of said Fluker tract for the year 1843, and until a final de-
cree of the chancery court foreclosing the mortgage upon
said tract. It was further agreed that a fee to the solicitor
for defending the suit should be deducted out of said rents.
McGehee was the solicitor to whom said defence was en-
trusted.
Falls filed his answer in pursuance of said agreement, so
as to prepare the case for the proof, but afterwards left the
State, arid removed to Mississippi, and failed to furnish any
proof of the failure of consideration as agreed upon. The
chancery suit was pending several years, during which time
McGehee rented out the Fluker tract, and was finally dis-
posed of in 1846, the bill being taken for confessed against
the defendant, Falls, and a decree pronounced for the whole
of the mortgage demand.
The question is, whether the failure of Falls to produce
proof so as to reduce the amount for which the land was
mortgaged, does not relieve McGehee from his promise to di-
vide the rent. The court charged the jury, that if they
found the filing of the answer was a part of the consideration
for McGehee's promise, such filing would amount to a faith-
ful performance on the part of Falls, entitling the plaintiff to
recover a proportionate part for the rent, according to the be-
nefit the said McGehee had received by such partial perform-
ance. The garnishee insisted the violation of the contract
on the part of Falls discharged him from all liability under
the contract, but the court refused so to instruct the jury.
McGehee, having purchased at the marshal's sale the right
188 ALABAMA.
McGehee, garnishee, v. Walke.
to redeem this land from under the mortgage, had an interest
in having the demand which was secured by the mortgage
reduced as much as possible. He was entitled to the posses-
sion of the land, standing in the shoes of the mortgagor,
whose interest he had acquired, and was entitled to the rents
arid profits until deprived of that right by the operation of
the decree of the court. Aside, then, from the terms of the
contract into which the parties entered, Falls had no claim
upon the rents and profits of the land. Let us, then, con-
sider the nature of the contract. It did not provide that
Falls should file his answer setting up a sham or simulated
defence, so as to stave off the trial of the foreclosure suit, and
thus unjustly to retain possession of the land, so as to divide
the rents and profits which in the mean time might accrue.
Had such been the object and terms of the contract, the court
would unhesitatingly pronounce it void, as impeding the due
administration of justice, and contravening public policy.
But we must presume the object was to make a valid and
just defence, going to the consideration of the mortgage debt;
and to this end, Falls engages that he will not only file his
answer, (for if he had stopped here, the defence of partial
failure of consideration would have been unavailing,) but he
is to produce the proof to sustain the answer.
When this cause was previously before this court, the
chancery suit was still pending. There had then been no
violation of the contract on the part of Falls, to make the
proof which he undertook to adduce. Then it did not ap-
pear but that he would in due time comply with his engage-
ment, and the court held his promise was a sufficient conside-
ration to support an action on the contract against McGehee.
It is most manifest that the case now assumes an entirely dif-
ferent aspect. The creditor can acquire no greater right to
a participation in the rents under the contract, than Falls
himself possessed. Now, suppose Falls had sued upon the
contract, and had averred in his declaration the facts as here
detailed by the proof. It is perfectly clear he could not have
recovered ; for he has failed to perform the most essential
part of his contract, the production of proof to reduce the de-
mand claimed by the mortgagee, and having violated the
contract on his part, could not be allowed to enforce it
JANUARY TERM, 1849. 189
McGehee, garnishee, v. Walke.
against McGehee. Martin v. Chapman, 6 For. Rep, 344;
Martin v. Everett, 11 Ala. Rep. 375. He engaged to make
defence by his answer and proof. The defence is the failure
of consideration, which the proof must sustain, or it must
fail. It does fail. Non constat, McGehee has been injured
by this failure, to an amount greatly beyond any benefit he
may have derived from the partial performance. Be this as
it may, the undertaking of Falls is entire. It was to make
good the defence, and having failed to comply, he has no
legal ground of complaint that McGehee refuses to pay him.
3 Ala. Rep. 440 ; Ib. 676 ; 4 Ala. Rep. 336 ; 2 Pick. Rep.
267; 10 Ib. 209; 4 McCord's Rep. 246; Ib. 26; 4 Greenl.
R. 454 ; 6 Verm. R. 383.
While the part of the contract to be performed by Palls
was executory, his promise furnished a sufficient considera-
tion to enable him to recover. 11 Ala. Rep. 273. But when
he neglected the performance, until by the termination of the
suit upon the mortgage, it was rendered impossible for him to
comply, it ceased to furnish a consideration for the undertak-
ing on the part of McGehee.
Putting the contract aside, (as it is very clear Falls could
not recover by virtue of it,) it is difficult to conceive upon
what principle of law he could recover for the supposed ben-
efit which has accrued to McGehee from the filing of his an-
swer. It is said, delay of the suit was a consequence which
resulted from the answer, and McGehee was benefitted by
this, in being left for a longer period in possession of the
mortgaged premises. Now such benefit is not the necessary
or proximate result of filing the answer. Besides, it is not
that for which McGehee contracted. If it was, we have seen
the contract was void, and the law will never imply a con-
tract, which it would hold void if expressly entered into be-
tween the parties. This benefit may have accrued from va-
rious accidental circumstances occurring in the progress of
the cause, and the plaintiff in error cannot be said, in any just
sense, to have acquiesced in a partial performance by its ac-
crual, nor to have dispensed with a full compliance on the
part of Falls, by the retention of the land.
It seems to me that it would be impossible for there to ex-
ist any legal criterion by which a recovery could be appor-
190 ALABAMA.
Morgan v. Ramsey.
tioned to a benefit resulting from a combination of acciden-
tal causes, and which may in part be a consequence of the
part performance, but has no necessary connection with it.
The facts of the case clearly required the court to give the
first charge asked for by the plaintiff in error, and as this will
probably be conclusive of the case, it is unnecessary to no-
tice the other points raised in the argument.
Let the judgment be reversed, and the cause remanded.
MORGAN v. DOE ON THE DEMISE OF RAMSEY.
1. The agents of the State Bank and its branches, appointed under the sta-
tute, possess the same powers in executing process in favor of the bank
conferred on sheriffs, and are bound to observe the same rules.
2. A sheriff has no power to sell land, and pass the title to a purchaser, af-
ter the return term of the writ, on which he made the levy, unless new
process be issued to him for that purpose.
Error to the Circuit Court of Autauga. Before the Hon.
G. Goldthwaite.
EJECTMENT by the defendant in error, for a tract of land.
From a bill of exceptions, it appears, that the plaintiff below,
was the purchaser of the land, at an execution sale, and it ap-
pearing that the land was sold by the sheriff after the return
day of the execution, in virtue of a levy made previous to the
return term, without any other writ authorizing him to sell,
the defendant moved the court to charge, that the plaintiff
could not recover ; which charge the court refused to give,
and he excepted. This is assigned as error.
ELMORE and YANCEY, for plaintiff in error.
1. Lands could not be sold under execution, at common
JANUARY TERM, 1849. 191
Morgan v. Ramsey.
law, and are now subject to sale under a statutory provision.
See Clay's Dig. 205, 17.
2. The passing of title to real estate, by virtue of a levy of
fi. fa. must be considered a matter stricti juris the prerequi-
sites of the statute must be complied with. Downer v. Ha-
re w, 10 Vt. 418.
3. It is the imperative duty of the sheriff, to return pro-
cess in his hands, according to the statute, whether executed
or not. Clay's Dig. 199, $ 1 ; 336, $ 131-2 ; Brown & Mil-
ton v. Baker, Sproule & Co. 9 Porter, 503.
4. When the return day has passed, process ceases to have
any effect, and a sale of lands, after return day, without ad-
ditional process, by virtue of a levy made before, is void, as
being without authority. Brown & Milton v. Baker, Sproule
& Co. 9 For. 503 ; Downer v. Harew, 10 Vt. 418; Huggins
v. Ketchum, 4 Dev. & Bat. 415 ; Tarkinton v. Alexander, 2
Ib. 87 ; Bardeu v. McKinne, 4 Hawks, 279 ; Sims v. Randal,
2 Bay. 524 ; Seawell v. Bank of Cape Fear. 3 Dev. 279.
5. The same principle is recognized in Green v. Burke, 23
Wend. 498 ; Frost v. Etheridge, 1 Dev. 30, 33 ; Tayloe v.
Gaskins, 1 Ib. 295 ; Governor v. Eastwood, 1 Ib. 157 ; Saun-
derson v. Rogers, 3 Ib. 38; The State v. Greenlee, 4 Ib.
150. '
J. W. PRYOR, contra.
A sheriff may sell land after a return of the execution, if
he made a levy before the return day. Bun v. Dansdale, 2
Bin. 80 ; Blythe v. Richards, 10 S. & R. 261 ; Tillotson v.
Gregory, 5 Blaithford, 590 ; Mordecai v. Speight, 3 Dev.
428 ; Cox v. Joiner, 4 Bibb, 94 ; Irvin v. Pickett, 3 Ib. 343 ;
Wood v. Colvin, 5 Hill, 228, 231.
A sheriffs deed cannot be impeached collaterally, for any
irregularity in his proceedings, or in the process under which
he sells, all that is essential in such a case, is a judgment,
execution ^thereon, levy, and sheriffs deed. Ware v. Brad-
ford, 2 Ala. 675.
DARGAN, J. The agent of the Branch Bank at Mont-
gomery, appointed under the act of 1843, (Clay's Dig. 118,)
levied an execution on the land in controversy, which was
iy-2 ALABAMA.
Morgan v. Ramsey.
issued against White, and was in favor of the bank. The
execution was returnable to the circuit court of Montgomery,
to be held on the first Monday of March, 1844, but was levi-
ed on the land in October previous to the return term of the
writ. On the first Monday in April, 1844, the agent of the
bank, by virtue of this levy, sold the land to the lessors of
the plaintiff, but no other process had issued to him, to ena-
ble him to sell. On these facts, the plaintiff in error request-
ed the court to charge the jury, that the plaintiff below could
not recover, which the court refused.
The agents of the State Bank, and its Branches, appointed
under the act referred to, possess the same powers in execut-
ing process in favor of the banks, confided by law to sheriffs,
and are bound to observe the same rules in the execution of
process, prescribed to the sheriffs. The question therefore a-
rising out of the charge requested, is, can a sheriff sell land
after the return day of the execution, by virtue of a levy pre-
viously made, and by a sale give the purchaser a good title.
By the statute law of this state, sheriffs are required to re-
turn all executions to the clerk's office from which they
issued, three days before the term to which they are returna-
ble, and it is very clear, that the authority conferred on the
sheriff by the writ, ceases when the return day is pasl ; and
if the money due on the execution be paid to him after that
time, the payment will not operate as a satisfaction of the
judgment. Barton v. Lockhart, 2 Stew. & P. 109 ; Bobo v.
Thompson, 3 Ib. 385 ; 3 Ala. 299 ; Chandler v. The State
Bank, at the last term.
If a sheriff has not the authority to receive the money, af-
ter the return day of the execution, he has not power to sell
land by virtue of a previous levy. The object of the sale is,
to raise the money, and for this purpose the execution gives
him power to sell the land of the defendant, and to pass the
title to the purchaser, but after the authority to receive the
money is gone, he cannot retain the power to sell.
It is true, that if the levy had been made on personal pro-
perty, and by virtue of the levy, the sheriff had the posses-
sion, he may sell, notwithstanding the return day has passed ;
for by the levy, and possession, the sheriff has a special pro-
perty in the goods, and his purchaser will receive by the sale,
JANUARY TERM, 1849. 1.93
Morgan v. Ramsey.
the title the sheriff had, and which must be superior to the
title of the defendant in execution.
The levy on personal property divests the title of the de-
fendant, as in favor of the sheriff, and the execution will be
considered as satisfied, to the extent of the value of the pro-
perty, unless it be returned to the defendant, or the sheriff be
deprived of the possession by his act. He may therefore sell
by virtue of his title, although the return day of the writ is
past.
But a levy on real estate, gives the sheriff neither title or
possession, and a sale by him of land, in order to pass the ti-
tle to the purchaser, must be made by process, which clothes
him at the time, with power to sell, and authority to receive
the money. If he sell land by virtue of the previous levy,
after the return day of the execution, and without any new
process, issued to him for that purpose, the sale is void, and
the purchaser acquires no title. Doe v. Kinny, 4 Hawks,
279 ; Cash v. Sazer, 1 Watts & S. 519 ; 10 Verm. Rep. 418 ;
2 Dev. & Bat. 87 ; 9 Porter, 503.
It is true, that the decisions of the courts of the United
States, do not harmonize on this subject, but we think the
view we have taken is correct on principle. A purchaser
from a sheriff, as from any other person, must show that he
acquired a title by his purchase. This cannot be shown,
unless the sheriff either had a title in himself at the time he
sold, or unless he had the legal authority to sell. The object
of clothing the sheriff with authority to sell, is to enable him
to obtain the money, in satisfaction of the judgment, and if
he had not authority to receive the money, at the time of the
sale, from the defendant, it would be absurd to say that he
had authority to sell the defendant's land, to enable him to
obtain it.
Under the decisions of this court before referred to, a pay-
ment by the defendant to the sheriff, at the time of the sale
of the land, would not have operated as a satisfaction of the
judgment ; the sheriff had no right to receive the money, and
consequently no authority to sell the land.
Let the judgment be reversed arid the cause remanded.
Vol. 1525
194 ALABAMA.
llowell v. Hair.
HOWELL v. HAIR.
1. Where the statute of limitations of another state is relied on by the plain-
tiff in a suit, as vesting in him a right to the property in controversy, if
there is a saving or exception in the statute, that will restrain its opera-
tion in favor of the plaintiff, it is the duty of the defendant to show it, and
not that of the plaintiff to negative its existence.
2. A saving or exception, restrictive of its operation, not found in a statute
of limitations, will not be implied.
3. The mere fact that a party, having the rightful title to property in Geor-
gia, is a resident of the state of Alabama, and is ignorant as to where the
property is, does not relieve him from the necessity of instituting his action
for its recovery, within the period, prescribed by the statute of limitations
of the former state to bar his right.
4. A purchaser of property, for valuable consideration, without notice, who has
been in the quiet and peaceable possession of such property, in the state of
Georgia, for a period sufficient to render the statute of limitations of that
state an available bar, may recover it from the former owner, from whose
possession it was tortiously or feloniously taken, and who has retaken it
from such purchaser, after the statute had completed a bar.
5. The statute of limitations of the state in which property is, having crea-
ted a bar, the title of the possessor of it is complete, although it may be
afterwards removed into another state having a longer period of prescrip-
tion.
Error to the Circuit Court of Sumter. Before the Hon.
Geo. Goldthwaite.
THIS was an actiou of trover by plaintiff, against defendant
in error, to recover damages for the conversion of a slave.
The facts are set out in a bill of exceptions found in the re-
cord. The slave in controversy was once the property of
William Drummond, deceased, upon whose estate defendant
is administrator, and was left with his wife in Florida, by
said Drummond, upon his removal to this state. About the
year 1832, the slave was taken by fraud, force, or felony,
from the possession of Mrs. Drummond, in Florida, and car-
ried to the state of Georgia, and there sold. In 1 832, one
Scott was in possession of the slave in Georgia, and, about
JANUARY TERM, 1849. 195
Howell v. Hair.
the 24th of April, 1834, sold him to one Foster, who in the
same year sold him to the plaintiff. The plaintiff and his
vendor were both bonafide purchasers, for a full and valua-
ble consideration, without notice, and the former retained
quiet and peaceable possession of the slave in Georgia, until
some time in the latter part of the year 1839, when Drum-
mond, the defendant's intestate, covertly obtained possession
of him, and brought him to Alabama. Since that time, the
slave has been in the possession of Drummond, and his ad-
ministrator since his death. The statute of limitations of
Georgia, which is quoted at length in the opinion of the
court, was read in evidence by the plaintiff. Drummond
lived in this State continuously from the time he left Flori-
da to the time of his death, and though he made inquiry, was
unable to discover where said slave was, until a few months
before he got possession of him in Georgia.
The court charged the jury, that if they should believe
from the evidence, that the slave was originally the property
of Drummond in Florida, and was taken from his wife, with
whom he had left him, by fraud, force, or felony, and carried
into the state of Georgia, and there sold to a bonafide pur-
chaser for value, without notice, and was retained by said
bonafide purchaser in his possession under said purchase, for
more than four years in the said state of Georgia, the said
Drummond being the whole of this time a resident citizen
of the state of Alabama, and having no notice of the where-
abouts of said slave, or unable to discover where he was by
reasonable diligence, that the title accruing to said plaintiff
under his purchase, possession, and the statute of Georgia,
would not authorize him to recover said slave of the said
Drummond, in this state, or his administrator, the said de-
fendant. To this charge the plaintiff excepted, and now as-
signs it as error.
R. H. SMITH, for the plaintiff in error.
1. The charge of the court was abstract. There was no
evidence conducing to show fraud, force, or felony.
2. It is not necessary to consider whether a fraudulent
concealment of a possession derived by fraud is an exception
1% ALABAMA.
Ilowoll v. Hair.
to the statute, because there was no evidence of such con-
cealment.
3. Obtaining possession by fraud does not prevent the sta-
tute from running. 9 Verm. 110 ; 17 Wend. 202.
Then we, (being a bonafide innocent purchaser) could if
\ve had been sued in Georgia, have set up title by time. And
if we had a title by time, we can rely on it in Alabama.
Goodman v. Munks, 8 For. 84.
HUNTINGTON and HOYT, for defendant in error.
1. The intestate of the defendant in error, as a citizen of
Alabama, had a right to avail himself of a statute of this state
which is in direct conflict with the legislation of the state of
Georgia on the same subject. The Alabama statute is: " If any
person or persons, against whom there is or shall be any cause
of action, as is specified in the preceding sections of this act,
is, are, or shall be, out of this state at the time of the cause of
such action accruing, or at any time during which a suit
might be sustained on such cause of action, then the person
or persons who is, or shall be entitled to such action, shall
be at liberty to bring the same against such person or per-
sons after his, her or their return into this state ; and the
time of such person's absence shall not be accounted or taken
as part of the time limited by this act." Now the record
shows, that Henry Howell was out of this state when the
cause of action in favor of William Drummond accrued against
him ; consequently, whatever may be the phraseology or
stringency of the Georgia statute, Drummond would always
have had six years after the return or coming of Howell with-
in this jurisdiction, in which to have brought his action, and
Howell could not have objected to such action, that the
Georgia statute had given him a title by prescription, be-
cause such an objection, if allowed, would render nugatory
the statute of a sovereign state, enacted for the protection of
its own citizens. Hence it follows, that the litigation being
in this state, Drummond had a right of action by the lex fori;
his administrator had the same ; yet he could not have had
such right of action if the Georgia statute of limitations
should be permitted to do away his title. We therefore re-
spectfully suggest, that the effect of a decision in this case as
JANUARY TERM, 1849. 197
Howell v. Hair.
contehded for is to permit a Georgia statute to override an Ala-
bama statute, and that in our courts, and as against one of
our own citizens. The laws of a sister state cannot be per-
mitted to defeat the provisions of our own laws, to interfere
with our policy, or to work a prejudice to our citizens. Riggs,
use, &c. v. Dyche et al. 2 Sm. & M. 615. Our own court
has decided, that a replication to the plea of the statute, that
at the time of the execution of the note sued on, the maker
resided in North Carolina, and had not resided in Alabama for
six years before suit brought, is good on demurrer. Towns
v. Bardwell, 1 S. & P. 36, confirmed in Watson v. Brazeal,
7 Ala. 452 ; see also, Smith v. Heirs of Bond, 8 Ala. 386 ;
Ruggles v. Keeler, 3 Johns. 263, and 7 Mass. 515. The ne-
cessary result of such a decision in the present case is, that
Howell has a right of action against Drummond's administra-
tor, founded on the Georgia statute, and that Drummond's ad-
ministrator has the same right of action against Howell,
founded on the Alabama statute, whenever Howell returns,
or comes to this state. But this right of action might have
been asserted by a writ of detinue, levied on the very negro
who is the subject of this controversy ; yet by the decision of
this court, the boy could not have been so taken and levied
on, because Howell had a title to him by prescription, found-
ed on the Georgia statute.
The authorities relating to the extra territorial efficacy of
the statute of limitations, have reference only to cases where
both parties were subject to the jurisdiction of the foreign
state, when the bar arising from its statute of limitations at-
tached. See Story's Confl. L. 489, note, and Bulger v.
Roche, 11 Pick. 36.
COLLIER, C. J. The only question in this case is,
whether, if property be taken from the possession of the
rightful owner, in Florida, by " fraud, force, or felony," car-
ried to Georgia, and there purchased by a third person, for a
valuable consideration, without notice of the circumstances
of the abduction, or the want of title, in the party who remov-
ed it, the possession of the vendee, if continued, in the latter
state, for a longer period, than the statute of limitations of that
state prescribes, as a bar to an action for its recovery, will give
198 ALABAMA.
Howell v. Hair.
the vendee a title, on which he may recover the property of
the original owner, who "covertly" took it into possession,
and removed it into this state ? The solution of this ques-
tion must depend upon the act of limitations of Georgia,
which, so far as is disclosed by the record, is as follows :
" All actions of trespass quare clausum fregit, all actions of
trespass, detinue, actions of trover and replevin for taking a-
way goods and cattle, all actions upon accounts and upon the
case, (other than such accounts as concern the trade of mer-
chandize, between merchant and merchant, their factors or
servants,) all actions of debt grounded upon any lending, or
contract without specialty, all actions of debt for arrearages
of rent, and all actions of assault, menace and battery, wound-
ing and imprisonment, or any of them, which shall be sued, or
brought at any time after the passing of this act, shall be com-
menced and sued within the time and limitations hereinafter
expressed, and not afterwards ; that is to say, the said actions
upon the case (other than for slander,) and the said actions
for account, and the said actions for trespass, debt, detinue
and replevin for goods and cattle, and the said action
of trespass quare clausum fregit, within three years
next after the passing of this act, or within four years next
after the cause of such actions or suits, and not after ; and
the said actions of trespass, assault, battery, wounding im-
prisonment, or any of them, within one year after the pass-
ing of this act, or within two years next after the cause of
such action or suit, and not after, and the said actions upon
the case for words, within six months next after the passing
of this act, or within six months next after the words spoken,
and not after."
This enactment, it will be observed, contains no saving or
exception, under the influence of which a plaintiffs right of
action is continued beyond the period of prescription, and we
are not authorized to presume that any such exists in the le-
gislation of Georgia, applicable to the present case. If there
is such a provision, it was incumbent upon the defendant to
have produced it, and not upon the plaintiff to negative its
existence.
In respect to such statutes, it has been so often decided,
as to be now indisputably settled, that an exception will not
JANUARY TERM, 1849. 199
Howell v. Hair.
be implied for the purpose of arresting their operation ; that
unless there can be found in the statute itself some ground
for restraining it, it cannot be restricted by arbitrary addition.
Ang. on Lim. 2d ed. 205, 518, et seq. This being the law,
the residence of the defendant's intestate in Alabama, even
coupled with his ignorance where the slave might be found,
did not relieve him from the necessity of instituting his action
in Georgia, within four years after the sale, in order to pre-
vent the operation of the statute we have cited, when applied
to such a case as the present. If solicitous for the recovery
of his rights, it devolved upon him to inquire diligently to
what point his property had been removed ; and if he prose-
cuted such an inquiry unsuccessfully, it was his misfortune.
Bowman v. Wather, 1 How. Rep. (U. S.) 189. If, in the
scale of moral justice, his claim was more meritorious than
the plaintiffs a question not presented for our decision it
is a sufficient answer to say, that the legislature have pre-
scribed a period after which it cannot be made available, and
that period had elapsed before the plaintiff's possession was
disturbed.
It is needless to consider whether a possession, commenced
and continued by " fraud, force or felony," can ripen into a
title by prescription, as the plaintiff's possession cannot be as-
signed to either of these categories. The bill of exceptions
explicitly states, that he was a bona Jide purchaser for value,
without notice that even suspicion rested upon the title he
acquired. These facts being conceded, his possession be-
came adverse the very instant it was acquired, and from that
time the statute of Georgia began to run.
Detinue or trover may be maintained upon the mere
ground of a previous possession, originally acquired without
force or fraud, and enjoyed for a sufficient length of time to
make the statute of limitations an available bar. So it has
been often decided, that where the possession of personal pro-
perty has been held in one State for a period prescribed by
the laws of that State, beyond which an action cannot be
maintained for its recovery, if the possessor afterwards re-
moves into another State, which has a longer period of pre-
scription, the original owner cannot successfully assert a title
against him in the latter State. Goodman v. Munks, 8 Port.
200 ALABA M A .
Howell v. Hair.
Rep. 84, and cases there cited. None of these citations seem
to consider it essential to the operation of the act, that the
plaintiff resided in the same State, in which the property
was enjoyed for the period prescribed, unless the statute con-
tained an exception in favor of persons "beyond seas," &c.;
but the reverse, if not explicitly decided, is clearly inferable
from the reasoning they employ.
If the defendant's testator had instituted his action in
Georgia more than four years after the plaintiff purchased
the slave, he must have failed, though during all that time,
he resided in Alabama : for the reason that the statute of that
State is peremptory in its terms, without any saving in favor
of non-residents. The bar then being complete in Georgia,
the statute (as we have seen) gave a title which may be as-
serted in any other State, unless it be held to be unconstitu-
tional or inoperative extra territorium. We cannot deny to
it effect for the first reason ; because, not only the constitu-
tionality, but the policy of such enactments, is too well set-
tled to be now controverted. Ang. on Lira. 18 to 20, and
cases cited, 2d ed.; McBlmoyle v. Cohen, 13 Pet. Rep. 312.
The cases collated in Goodman v. Munks, conclusively show
that the statute having run in the State where the property
was, the title of the possessor is complete every where. Mr.
Justice Story, upon this point, says : " Suppose, for instance,
(as has occurred) personal property is adversely held in a
State for a period beyond that prescribed by the laws of the
State, and after that period has elapsed, the possessor should
remove into another State which has a longer period of pre-
scription, or is without any prescription ; could the original
"owner assert a title there, against the possessor, whose title,
by the local law and the lapse of time, had become final ? It
has certainly been thought that in such a case, the title of
the possessor cannot be impugned. This subject may be
deemed by some persons still open for future discussion. It
has however, the direct authority of the supreme court of the
United Slates in its favor, and its correctness has been re-
cently recognized by the court of common pleas in England."
Story's Confl. of L. $ 581, and notes. This being the law,
as this court has repeatedly held, it is needless to inquire
what influence statutes of limitation professedly upon other
___ JANUARY TERM, 1849. 201
Howell v. Hair.
interests or causes of action have, when invoked in a foreign
jurisdiction. Id., and 582; Don v. Lippman, 5 Clark $
Fin. Rep. 1.
It is however insisted by the defendant, that the statute of
this State must be looked to as furnishing the period of limi-
tation, and the time of the plaintiff's residence in Georgia
cannot be computed ; and the Sth section of the act of 1802
has been cited as specially applicable. That section de-
clares, that if a party against whom there shall be any cause
of action as specified in the act, "shall be out of this State
at the time of the cause of such action accruing, or at any
time during which a suit might be sustained on such cause
of action, then the person or persons who is, or shall be enti-
tled to such action, shall be at liberty to bring the same
against such person or persons, after his, her, or their return
into this State ; and the time of such person's absence shall
not be accounted or taken as a part of the time limited by this
act." Clay's Dig. 327, <> 84. The view we have taken of
the effect of the plaintiff's possession in Georgia, makes this
enactment wholly inapplicable : besides, the terms used, in-
dicate that it was intended to apply to defendants who re-
sided, or at least had been in this State ; or if to a plaintiff,
such must have been the fact in respect to him. If the party
had not been here previously, how could he "return." But
we will not extend this view, as the act is foreign to the
point in hand.
The case of Towns v. Bard well, 1 Stew. & For. Rep. 36,
bears no analogy to the present. There, the defendant
pleaded the statute of limitations of this State, to an action
on a promissory note ; to which the plaintiff replied, that the
maker of the note resided in North Carolina at the time.it
was made, and had not resided in Alabama six years before
the writ issued. The replication was held good on demur-
rer, without reference to the Sth section above cited. It is
perfectly clear that the Alabama act of limitations did not be-
gin to run until the defendant removed within, the State.
But if the North Carolina statute had completed a bar to an
action there, then the principle settled in Goodman v. iNIunks
would have applied, if it had been relied on. Watson v.
Vol. 1526
202 ALABAMA.
Bondurant, adm'r, v. Thompson's distributees. ""
Brazeal, 7 Ala. Rep. 451, and Smith v. Bond's heirs, 8 Ala.
Rep. 386, decide no question in respect to the effect of a for-
eign statute of limitations, and do not lend any aid to the de-
fence set up in the present case.
The argument that, although the statute designates the
action of trover, it does not limit the time within which it
must be instituted, cannot be supported. That action is said
to belong to the class of actions on the case, and was doubt-
less so considered by the legislature of Georgia. The result
of these views is, that the circuit court erred in the charge to
the jury. Its judgment is consequently reversed, and the
cause remanded.
BONDURANT, ADM'R, &c. v. THOMPSON'S DISTRI-
BUTEES.
1. A judgment or decree cannot be amended, upon evidence dehora the re-
cord.
2. In the settlement of an estate in the orphans court the court has no pow-
er to allow the set off of a debt, due to the estate, by one of the distribu-
tees, against the share of such distributee.
3. Previous to the statute of 1839, authorizing administrators to rent the
lands of their intestates, the orphans' court had no power to compel an
administrator to account for the rent of land of the estate, received by him.
4. Where a sheriff, as administrator ex offiido, neglects to collect notes, due
the estate, until his term of office expires, he will not be chargeable with
the amount thereof, if the makers of the notes were perfectly solvent, for
a considerable time, after his administration ceased.
Error to the Orphans' Court of Marengo. Before the Hon.
James A. Young, Judge.
THIS was a proceeding by defendants against plaintiff in
error, to compel a settlement of his administration of the es-
tate of Nicholas W. Thompson. The plaintiff, as sheriff of
JANUARY TERM, 1849. 203
Bondurant, adm'r, v. Tnompson's distributees.
Marengo, was, in 1836, appointed administrator of said es-
tate, and received as assets of the estate, notes on various
persons to an amount exceeding $700. He also, between
the years 1836 and 1838, received $197 for rent of the land
of which his intestate died seized. His term of office ex-
pired in August, 1838, at which time the notes remained un-
collected, arid from which time to 1843, they continued in
his hands, no administrator de bonis non having been ap-
pointed in the mean time. The makers of the notes were
perfectly solvent for some time after the expiration of plain-
tiffs term of office. In 1843, one Dubose was appointed ad-
ministrator de bonis non, and plaintiff immediately turned
the notes over to him, but they were then worthless. The
plaintiff, in the course of the settlement, which took place in
February, 1846, claimed as a credit, $150, due by Sarah
Thompson, one of the distributees, on one of the notes re-
ceived by him, and with which amount he was sought to be
charged, but the court refused to allow it. Judgment was
entered in favor of the distributees, for the aggregate amount
of the notes, and also for the rents received by plaintiff.
At the October term, 1847, a motion was made by the
plaintiff to amend the decree, by inserting in it, that at the
trial, the plaintiff objected to being held to account, on the
ground, that he was never the administrator on the estate of
said Thompson, which motion was supported by affidavits,
satisfactorily showing that such objection was made, but the
court overruled the motion, and at the instance of the plain-
tiff, signed and sealed a bill of exceptions. The plaintiff
now assigns as error, the several rulings and judgment of the
court.
BROOKS, for the plaintiff.
CHILTON, J. 1. We cannot regard the bill of excep-
tions in this case, which was sealed more than eighteen
months after the final trial, but if we could, it is perfectly
clear, that the court below could not properly have made the
amendment desired by the motion of the plaintiffs in error.
There is nothing in the record by which to amend, and it is
well settled that nn amendment cannot be predicated upon
204 ALABAMA.
Bondurant, adm'r, v. Thompson's distributees. "
matter dehors the record. Beuford v. Daniels, 13 Ala. 667,
where the authorities are cited. The county court did not
therefore err in overruling the motion.
2. In Watson et al. v. McClanahan, Ex'r, 13 Ala. Rep. 57,
it was held, that an executor is entitled to payments made
by him to a creditor of a legatee, by his direction, when there
was an agreement that they should be allowed on settlement
as a payment of the legacy. But he has no right to set off a
debt due to him against the share of a distributee. Kidd v.
Porter, 13 Ala. Rep. 91. This case is not rested upon the
ground that the demands are due in different rights, but the
set off is rejected for want of jurisdiction in the orphans'
court. The set off is in the nature of a cross suit, and as the
orphans' court is one of limited jurisdiction, created by, and
dependent upon, the statutes for its powers, those statutes
having conferred no power to try questions of this kind, we
think the judge of that court properly refused to allow the
set off.
The record does not show that the administrator received
the proceeds of the rent of the land belonging to the intes-
tate in virtue of his office ; but it is clear that the land was
rented by him before the act of 1839, authorizing him to rent
it, and making the proceeds assets of the estate. Not
being assets of the estate, the jurisdiction of the orphans'
court did not attach ; and consequently no decree could
be rendered against the administrator for such rent.
Smith's Heirs v. Smith's Administrator, 13 Ala. Rep. 329.
The parties entitled must seek their remedy in another fo-
rum.
The only remaining point necessary to be considered is,
whether the administrator shall be held liable for the notes
due to the estate which came into his hands, but upon which
he failed to sue. The notes were shown to have been per-
fectly good long after the administration of the estate by Bon-
durant ceased, and no injury would have resulted to the es-
tate had an administrator been appointed as the successor of
Bondurant. It was the duty of the county judge to have
appointed an administrator de bonis won, after Bondurant's
term of office expired. His failure to do so should not have
the effect to charge the plaintiff in error.
__ JANUARY TERM, 1849. 205
Patterson v. Powell et al.
The principle settled by Dean and wife v. Eldridge admin-
istrator, at the present term, shows, that the bare failure to
sue on the part of the administrator, for two years, the par-
ties to the note being perfectly solvent long afterwards, is
not sufficient to charge the plaintiff in error. 3 Lit. Rep. 177.
The notes being on interest, and perfectly good, a prudent
man, having no need for the immediate use of the fund, might
well have postponed their collection. It is a sufficient answer
to his retention of the notes after his term of office expired,
that there was no person to whom he could hand them, and
that he did deliver them to his successor upon his appoint-
ment.
It results from what we have said, that the judgment of the
orphans' court must be reversed, and the cause remanded.
PATTERSON v. POWELL ET AL.
1. The estimated cash value of land, in the neighborhood in which it is sit-
uated, and in which it is to be sold, is a circumstance proper to go to the
jury, to determine whether the levy was sufficient, or not The sum for
which the land actually sold, is not the only criterion of its value.
2. The sheriff is not responsible for postponing a sale of land, until it is too
late to make another levy, and sale before the return day, if in good faith,
and in the exercise of ordinary prudence, he was justified in supposing,
the land would sell for a sum sufficient, to pay the executions in his hands.
The rule it seems is otherwise, in the case of a levy on personal property.
Error to the Circuit Court of Coosa. Before the Hon.
G. Goldthwaite.
THE plaintiff in error declared in debt against the defend-
ants, as the securities of the sheriff of Coosa, for failing to
make the money on an execution issued against Hobdy in
his favor. The execution was issued on the 6th day of Oc-
tober, 1841, and on the 15th November was levied on the
20G ALABAMA.
"Patterson v. Powell et al.
lands of the defendant. The land was sold on the first Mon-
day in March, 1842, for $303, and the proceeds applied to
older executions, which had also been levied on the same
land. It was proved by the plaintiff, that during the time
the execution was in the hands of the sheriff, the defendant
in execution had personal property in his possession to the
amount of $2,500. The defendant proved that he had exe-
cutions in his hands against Hobdy, in favor of different per-
sons, to the amount of twelve or thirteen hundred dollars,
and that the land levied on contained about 960 acres, lying
in one body, of which were cleared from 100 to 150 acres,
which was in cultivation, and from its location, character of
the soil, and growth of timber, was worth from four to five
dollars per acre, in cash. The witnesses admitted that they
had not known of the sale of any lands in the neighborhood
for cash, and did not know what the land would sell for at
sheriff's sale. The plaintiff objected to this evidence, on the
ground that it was not proper evidence to go to the jury, to
show what the land would bring at sheriff's sale ; and on the
ground that the sale of the land by the sheriff, was the best
evidence of that fact. The objection was overruled, and
the plaintiff excepted.
The defendants then proved, that immediately after the
sale of the land, the executions were levied on the slaves of
the defendant, and which were of value sufficient to satisfy
the several executions in his hands, and forthcoming bonds
were given for their delivery on the first Monday in April,
which was a week after the term of the court to which the
executions were returnable. The plaintiff objected to the
proof of the additional levy, but the objection was overruled.
The slaves were delivered on the day appointed, but the
.sheriff having died before that time, there was no person to
receive them, and hey were subsequently removed from the
state. The plaintiff proved, that there was a mortgage on
the land of Hobdy, older than any of the judgments, on
which was due $800, of which the sheriff had notice. It
was also shown, that the land was bid off by an agent of one
Campbell, who was the brother of the sheriff, who controlled
one of the executions, and that the sheriff said, that if Hob-
dy would do what was right, he would cause his brother to
reconvey the land back to him.
JANUARY TERM, 1849. 207
~~ Patterson v. Powell et al.
The plaintiff requested the court to charge the jury, that
if the land was incumbered by a mortgage of eight or nine
hundred dollars, and Hobdy had in his possession personal
property sufficient in value to satisfy thefi.fa., in the hands
of the sheriff, the sheriff was not justified in relying on the
land to satisfy the executions, and delaying the sale until the
first Monday in March, 1842.
2. That the actual amount the lands brought at sheriff's
sale, was the highest evidence of the value of the land, and
if the executions amounted to $1100, and the value of
the land as ascertained by the sale, amounted to $303, then
the defendants were liable. The court refused to give these
charges, and the plaintiff excepted.
The plaintiff then requested the court to charge the jury,
that if Hobdy was in possession of personal property, during
all the time the execution was in the sheriff's hands, suffi-
cient to satisfy it, and that the property was run off, soon af-
ter the return day of the execution, and no excuse whatever
is shown for not selling the land in time to make a re-levy,
in case the land proved insufficient to pay the execution,
then the defendants are liable. This charge the court gave,
but also instructed the jury, that they might look to all the
evidence, to determine if the land was of value sufficient to
induce an ordinarily prudent man to believe, that they would
have sold at sheriffs sale for an amount sufficient to pay all
the liens upon it, by mortgage or otherwise ; and if they so
believed from the evidence, they might regard this as a cir-
cumstance, to account for the sheriffs delay in not selling
the land in time to make a re-levy ; to which the plaintiff
excepted.
The plaintiff also requested the court to charge, that if
they believed, the sheriff delayed the sale of the land to fa-
vor or benefit Hobdy, the defendants were liable. This
charge the court also gave, but at the same time instructed
the jury, that if they believed that the delay in selling the
land, resulted from a belief that it was of value sufficient to
satisfy all the liens upon it, and would bring at sheriff's sale
a sum sufficient for this purpose and if they also believed
the land to be of sufficient value to authorize a man of ordi-
nary prudence to come to that conclusion, then on this point
208 ALABAMA.
Patterson v. Powell et al.
they should find for the defendants ; to which plaintiffs ex-
cepted.
The refusals to charge as asked, and the charges given,
are now assigned as error.
MORRIS, for plaintiff in error.
1. The evidence of the witnesses in relation to the value
of the land, should have been excluded ; they expressly say,
they do not know the value of the land at sheriff's sale.
This has heretofore been settled as improper evidence in this
very case. See Governor, use, &c. v. Powell et al. 9 Ala.
83.
2. The return of the sheriff shows, that the land was ac-
tually put up at sheriff's sale, and sold for $303. This sale
is a demonstration of the value of the land at sheriff's sale.
To say that the opinion of witnesses can outweigh this grade
of testimony, is too absurd to be tolerated. This fact estab-
lished, the sheriff is liable, having at the time liens in his
hands to the amount of 8900 or $1,000. This point is also
raised in the second charge. See this question decided in
Griffin v. Gannaway, 8 Ala. 625.
3. The additional levy should have been excluded. How
can a sheriff protect himself by a levy a few days before the
return term of the writ ? See Hallet v. Lee et al. 3 Ala. 28.
4. The opinion in this case, 9 Ala. 36, was on a state of
facts unlike the present; the mortgage on the land was not
brought to light on that trial. Now it is in evidence, and
presents the question under the circumstances, whether a she-
riff can rely on incumbered land, (there being personal pro-
perty amply sufficient,) for his protection, to the damage and
injury of the plaintiff. It is insisted he cannot. The only
safe rule is, that the sheriff must, in the absence of a good ex-
cuse, sell in time to make a re-levy, should the first prove in-
sufficient. Here the testimony shows, that no excuse what-
ever existed for the delay.
L. E. PARSONS, contra. 1. The rule of evidence in this
case has been already laid down, (9 Ala. 83,) and the court
below followed it. The value of the land in cash was the
only rule by which the sheriff could determine what it would
JANUARY TERM, 1849. 209
Patterson v. Powell et al.
bring at sheriffs sale. There were 960 acres of land, worth
in cash from four to five dollars $4,080 ; mortgage incum-
brance $800, executions $950 $1,750. Was it not reason-
able to suppose this land, lying in a body, improved and well
timbered and watered, would bring at sheriff's sale this
amount ?
2. The second levy was properly admitted in evidence, be-
cause it directly rebutted the idea that the sheriff had any
intention of favoring Hobdy at the expense of the creditors.
It is important to observe that he made this levy forthwith,
on finding the land did not bring enough, and that the last
levy was on enough of Hobdy's property to satisfy all the ex-
ecutions. Does not this, then, show a disposition to dis-
charge his duties in good faith ?
3. The sheriff could not foresee what the land would sell
for. He could only exercise his best judgment. Why then
should his sureties be estopped by the sale at $303, to show
that the land was really worth in cash a sum which would
afford reasonable grounds for supposing the money would be
made by a sale of it.
4. The offer to prove what Graham said when the property
last levied on was brought up for sale, after the sheriff was
dead and buried, was certainly not admissible. It was the
declaration of a third party, in the absence of all the parties
to this suit.
5. The charges given and the qualifications are in the ex-
act language of the opinion on this branch of the case in 9
Ala. 83. The decision at January terra, 1848, was on the
fraud part of the case. This was abandoned on the last trial.
DARGAN, J. It is the duty of a sheriff, in good faith to
execute all process that comes to his hands, and in the exer-
cise of the powers conferred on him for this purpose, he
should observe a due regard to the interest of both plaintiff"
and defendant. If he make an insufficient levy, when the
defendant had property sufficient to pay the debt, and thereby
fails to make the money according to the mandate of the
writ, he is responsible to the plaintiff. If he make an exces-
sive levy, to the injury of the defendant, he is responsible to
Vol. 1527
210 ALABAMA.
Patterson v. Powull et al.
him. In determining, therefore, whether the levy is suffi-
cient, or not, he must exercise a sound, and prudent discre-
tion, and the estimated cash value of the property, in the
neighborhood where it is situated, and where it is to be sold,
is necessarily a circumstance, which he must consider, in de-
termining whether the levy is sufficient or not.
If it so turn out, that the property, although of sufficient
value to pay the debt, remains in his hands unsold for the
want of buyers, and if by his return he shows these facts, if
he has honestly endeavored to sell it, he cannot be made re-
sponsible because no one will buy. If the property is fairly
sold, and brings much less than a man of prudent judgment
would have supposed to be its cash value, and what it should
have brought at cash sale, the sheriff is not responsible, if he
has exercised honesty, and good faith in the transaction. We
all know that property at sheriff sale sometimes brings its
full value sometimes, it is sold at a great sacrifice; whether
it will bring its value, or near it, or whether it will be sold
for less than one half its value, it is impossible for the sheriff
always to foresee ; consequently, it would be unjust, and un-
reasonable, when he is sought to be charged for an insuffi-
cient levy, to confine the evidence of the value of the pro-
perty, to the amount produced at the sale. This view we
think is sustained by the case of Powell v. The Governor,
use, &c. 9 Ala. 36, and shows that the court did not err, in
admitting the evidence objected to, and which tended to
show the value of the land in cash.
2. The evidence showed, that the land was mortgaged for
about eight or nine hundred dollars. The executions levied
on it, amounted to twelve or thirteen hundred. The land
was sold incumbered with the mortgage, for $303. The
testimony, apart from the sale, showed the cash value to be
about $4,000 ; the sate took place, the first Monday in
March. The term to which the execution was returnable,
commenced the last Monday; consequently, the sheriff could
not levy on and sell slaves after the sale of the land, before
the return day of the writ. But immediately after the sale,
slaves were levied on, and a forthcoming bond taken for their
delivery, on the first Monday in April. The instructions
given by the court to the jury on this evidence is, that if the
JANUARY TERM, 1849. 211
Patterson v. Powell et al. /
jury believed from the whole evidence, that the delay in sell-
ing the land, until it was too late to levy on and sell slaves,
before the return of the execution, resulted from a belief,
that the land was of value sufficient to pay all the liens on it,
and satisfy all the executions, and would bring at sheriff's sale
an amount sufficient for that purpose, and if they further be-
lieved, the land to be of sufficient value to authorize a man
of ordinary prudence to come to that conclusion, then they
should find for the defendants. We think these instructions
are fully justified, by the cases of The Governor, &c. v.
Powell, which grew out of the levy and sale of the same
lands, and also by the case of Powell v. The Governor. &c.,
both of which are reported in 9 Ala. 36, 83. Both those de-
cisions hold, that the sheriff was not responsible for postpon-
ing the sale of the land, until the last sale day. It was done
under a well founded belief, that the land would sell for
enough to satisfy all liens upon it, notwithstanding the in-
cumbrance on it, by way of mortgage. They likewise hold,
that the sheriff was not responsible for not making an addi-
tional levy, previous to the sale of the land, if he declined to
do so under the same belief.
These decisions are decisive to show, that there was no
error in this charge. It may be proper however, to add, that
we are not inclined to go further, than the decisions referred
to require. A sheriff levying on land, incumbered with a
mortgage, instead of unincumbered property, if it do not sell
for enough to satisfy the debt, must show, that men of good
judgment estimated the value of the land for cash, at a sum
sufficient to pay the execution, notwithstanding the mort-
gage, or incumbrance, and that he acted under the impres-
sion, that the land at sheriff sale, would bring enough for this
purpose. If the evidence does not acquit him of negligence,
and also show that he acted in good faith, under the impres-
sion that the laud, notwithstanding the incumbrance, would
bring enough to satisfy the plaintiff's demand, he would be
liable.
It is supposed that the case of Hallet v. Lee, 3 Ala. 28, is
opposed to the cases referred to in 9 Ala. But they are dis-
tinguishable. The levy in that case was on slaves; a forth-
coming bond was given, and the sale postponed, until the
212 ALABAMA.
Nuckols v. Mahone.
last sale day, before the return day of the writ. As the de-
fendant had given a forthcoming bond, whether the sale
would take place or not, depended on his will. If he saw
proper to deliver the property on the day of sale, the sheriff
could sell ; but it was at the option of the defendant in exe-
cution, whether a sale took place or not. This was negli-
gence, as the sheriff could have appointed an earlier day for
the sale, and if the property had not been delivered, the bond
could have been returned forfeited, an execution issued on
the bond, and a sale had, before the term of the court to
which the writ was returnable. But in the case at bar, as
well as in the cases referred to in 9 Ala., the levy was on
land, arid the sheriff had the right to sell, and did sell, on the
day appointed, and no act of the defendant could have pre-
vented the sale, unless he had paid the money.
There is no error in the ruling of the court, and the judg-
ment is affirmed.
NUCKOLS v. MAHONE.
1. The court will not interfere in a summary way by motion, and set aside
a sale of land made under execution, upon the ground of the invalidity of
the title of defendant in execution, but will leave the party to defend his
possession in the ordinary way, when the purchaser asserts his right.
2. It is a sufficient reason for quashing an execution, at the instance of a par-
ty, or privy, that it] issued after the death of the plaintiff; but the inva-
lidity of the execution, does not warrant the court in setting aside a sale
of land made under it, against a bonajide purchaser, without notice.
Error to the Circuit Court of Macon. Before the Hon.
George W. Stone.
MOTION by the plaintiff in error, to set aside a sale of land
made under execution. The plaintiff filed his petition for a
rule on the parties in intest, setting forth his title to certain
JANUARY TERM, 1849. 213
Nuckols v. Mahone.
lands, which had been sold as the property of one William-
son Freeman, in virtue of an execution issued on a judgment
in favor of James H. Shorter, who was dead at the time the
execution issued. The allegations of the petition establish,
that the petitioner has the title to the land, by purchase from
Freeman, and held the eqitable title.
The defendant cited to contest the allegation of the peti-
tion, demurred thereto, and the court sustained the demurrer
and dismissed the petition. This is now assigned as error.
J. E. BELSER, G. W. GDNN, and S. F. RICE, for the plain-
tiff in error.
1. A party injured by the improper execution of a fieri fa-
cias, may obtain redress on motion to the court from which
the writ issued, whether he be a vendor with warranty, or
purchaser. Mobile Cotton Press v. McGehee, 9 Porter, 679 ;
Abercrombie v. Conner, 10 Ala. 277 ; Goff v. Jones, 6 Wen,
522 ; Johnson v. Hardy, 4 Mass. 483.
2. An application to set aside a sale, will be heard at the
instance of a bonafide purchaser, when the same would be
refused at the instance of a stranger. Wood v. Fry, 6 Wen.
563. '
3. An execution issued after the death of a sole plaintiff is
void, and if the plaintiff dies after the execution is delivered
to the sheriff, but before a levy of the same, it abates. Abel
v. Ward, 8 Mass. 79; Carter v. Simpson, 7 John. 535; Wag-
ner v. McCoy, 2 Bibb, 198 ; Case v. Bradford, 7 Wend. 398 j
Massie v. Long, 2 Ohio, 287 ; Buckner v. Terrell, Littel, S.
C. 29 ; Bridges v. Caldwell, 2 A. K. Mar. 195 ; Noe v. Con-
yers, 6 J. J. Mar. 234 ; Millroy v. Johnson, 7 Ala. 660 ; Man-
sel v. Bank, 4 Ib. 735 ; Stinnett v. The Bank, 9 Ib. 335 ;
Haden v. Sandy's adm'r. 11 Ib. 43.
4. If any case of the kind can be set aside, the power
should be exercised in this case, from the facts contained in
the record.
COCKE, contra.
1. The petition is no part of the record, never having been
made so by any action of the court, and must be disregarded.
2. The demurrer was properly sustained 1. The neces-
214 ALABAMA.
Nuckols v. Mah(iiii\
sary parties were not brought into court by the petitioner.
The defendants to the judgment were parties in interest, and
should have been made parties to the motion. 2. The peti-
tioner had no right to make the motion. He was not a par-
ty to the record, and had no such interest in the sale as au-
thorized him to interpose in that summary way. Gassels v.
Wilson, 4 Wash. C. C. 59 ; 8 Johns. 332 ; 1 Browne, 218 ; 2
Hill, S. C., 298 ; Cawthorne v. Knight. 11 Ala. 268. There
can be no difference in principle between the case at bar and
one in which a claimant attempts to shew the irregularity of
the execution, in opposition to the levy of which, he interposes
his claim. This cannot be done, even though the execution
be void. Blount & Stanley v. Traylor, 4 Ala. 667.
COLLIER, C. J. In the Mobile Cotton Press &c. v.
Moore &. Magee, 9 Port. Rep. 679, we made the following
deductions from authorities : " 1. A party injured by the im-
proper execution of a fieri facias, may obtain redress on mo-
tion to the court from which the writ issued. 2. That a
sale of land will be set aside, where the sheriff is guilty of a
mistake, irregularity, or fraud, to the prejudice of either par-
ty, or a third person. 3. So the misrepresentation orfraud
of a purchaser, furnishes just ground for invalidating the
sale." This decision was recognized in McCullum v. Hub-
bert and Caple, 13 Ala. Rep. 289, in which it was also held,
that the fraud which will authorize the court to set aside a
sheriffs sale of land on motion, must exist at the time of the
sale. Subsequent irregularities will not justify it, but the
party aggrieved must assert his rights in another forum.
Where real estate has been sold under a. fi.fa., a motion to
set aside the sale will be entertained, not only by a party to
the process, but by a previous vendor of the land with a cov-
enant of warranty, any time before the purchaser obtains
possession, or recovers it by suit ; and even after the posses-
sion is obtained, where this takes place in so short a time af-
ther the sale, that application cannot conveniently be made
to set it aside. Abercrombie et al. v. Conner, 10 Ala. Rep.
293.
In Chambers v. Stone & Pope, 9 Ala. Rep. 260, it was de-
cided, that the quashing an execution for irregularity, does
JANUARY TERM, 1849. 215
Nuckols v. Mahone.
not of itself set aside a, sale of land made under it. Nor
should the sale be set aside, if the purchaser, without notice
of the irregularity, has paid his money and obtained a deed.
The onus of proving such notice lies on the party making
the motion.
A motion to amend a sheriff's return, by striking out the
levy of the/, fa. on a slave, alledged to be the property of a
stranger to the process, will not be entertained at the suit of
such stranger. Cawthorn v. Knight, 11 Ala. Rep. 268. It
was admitted that the court would, as in the cases we have
cited, prevent the abuse of its process by setting aside a levy
and sale ; but it was added, that " it never has been suppos-
ed, that under color of exercising this right, it could in this
summary way determine upon conflicting titles to proper-
ty." See Blount and Stanley v. Traylor, 4 Ala. 667.
The objection to the fi.fa. in the case at bar is, that it was
issued after the death of the plaintiff therein. This is a suf-
ficient ground for quashing it, at the instance of a party or
privy ; but if the plaintiff stand in a situation which entitles
him to submit a motion for that purpose, the invalidity of
the execution does not warrant the court in setting aside the
sale against a bona fide purchaser without notice. See
Chambers v. Stone and Pope, supra. Besides, the latent de-
fect in the/, fa. cannot be regarded an abuse of the authori-
ty of the sheriff, or in any manner enter into its execution,
where the officer has merely followed its mandate. If the
land which was sold is really the property of the plaintiff in
the motion, he may make his title appear, and defend his pos-
session when the purchaser asserts his right ; but we have
seen, the conflicting title will not be determined upon the ap-
plication to set aside the sale. Cawthorn v. Knight, supra.
See also, Stewart v. Nuckolls, at this term.
Neither of the grounds upon which the rule to show cause
.was granted, authorized the circuit courr to set aside the
sale. The judgment sustaining the demurrer, which, in
point of law, was merely a denial of the motion, is therefore
affirmed,
216 ALABAMA.
Bussey v. The Br. Bank at Montgomery.
BUSSEY v. THE BR. BANK AT MONTGOMERY.
1. In a suit, by the Bank of the State of Alabama or any of its branches, on
a joint and several promissory note or bill of exchange, judgment may be
rendered, under the statute of 1840, requiring all the parties to be sued
in the same action, against any defendant, whom the jury shall by their
verdict find liable on it, although other defendants may make a successful
defence and defeat a recovery against them.
Error to the Circuit Court of Montgomery. Before the
Hon. Geo. Goldthwaite.
THIS was a proceeding by notice and motion by defend-
ant, against plaintiff in error and one Pindley, to recover the
amount of a promissory note for $500, purporting to have
made by them. Bussey and Findley severed in their pleas
the former pleading, the general issue, and the latter, non est
Jactum. The jury found against Bussey, and in favor of
Findley, and the judgment of the court was in conformity
with the verdict. Bussey moved in arrest of judgment, but
the court overruled his motion, and this is now assigned as
error.
J. P. SAFFOLD, for plaintiff in error.
" If one is discharged by verdict on a defence which does
not arise subsequent to the contract, or is personal to the de-
fendant insisting on it, it will prevent, or be sufficient cause
to asrest the judgment against the others." Palmer, use, &c.
v. Severance & Stewart, 10 Ala. R. 346; Ivey v. Gamble, 7
Porter, 545; Turner v. Lazarus, 6 Ala. R. 875; Gray's
adm'r v. White, 5 Ala. R. 490.
" Even where there is a judgment by default against one,*
and upon the trial the co-defendants are successful, the effect
of the verdict would be to vacate that judgment, and operate
a discontinuance of the action." Turner and others v. Laza-
rus, 6 Ala. Rep. 878.
" Where the holder of a joint and several note sues all the
makers, he cannot sever, and take judgment against one
JANUARY TERM, 1849. 217
Bussey v. The Br. Bank at Montgomery.
only." Plainer v. Johnson, 3 Hill, 476 ; 2 Sup. U. S. Dig.
224, art. 160.
Where a joint judgment and joint verdict have been ren-
dered against defendants, and there is no evidence to sustain
the verdict as to one, the verdict must be set aside, and the
judgment reversed as to both. Saunders v. Harris, 5 Humph.
(Tenn.) R. 345; 2 Sup. U. S. Dig. 226, art. 205.
The statute law (Clay's Dig. Ill, 39,) providing for a
severance in case either party demand it, does not affect this
proceeding, as no person demanded a severance, and both de-
fendants were tried before the same jury, at the same time,
and the same verdict was in favor of one, and against the
other.
J. A. ELMORE, contra.
CHILTON, J. In Turner et al. v. Lazarus, 6 Ala. Rep,
877, it is said that the act of 1818, (Clay's Dig. 323, <> 61,
62,) which declares every promissory note, &c. shall be con-
strued to have the same effect in law as a joint and several
note, &c., and makes it lawful to sue out process, and to pro-
ceed to judgment against any one or more of the makers, and
which authorizes the plaintiff in a joint suit against several
defendants, to discontinue as to such of them as have not been
served with the process, &c., has never been held to author-
ize a judgment against one joint maker of a note, where all
of them have been brought before the court by service of
process. It is further added, that this statute does not mo-
dify the common law rule, further than to authorize a dis-
continuance as to those on whom the writ has not been exe-
cuted.
The common law rule, as it is recognized by the English
decisions, undoubtedly is, that in actions ex contractu, a dis-
continuance as to one defendant, sued on the joint contract,
is a discontinuance of the entire suit. See 2 Saund. 207, n.
2 ; also Jones et al. v. Pitcher, 3 Stew. & Por. 135, and
cases cited. But this rule, it is said, never extended to those
where a defendant is discharged by matter arising sub-
sequent to the contract, or is personal to the party pleading
Vol. 1528
218 ALABAMA. ._
Bussey v. The Br. Bank at Montgomery.
it ; for example, a discharge in bankruptcy, or in the case of
executors, where one is discharged upon the plea of plene ad-
ministravit.
So in Ivy v. Gamble, 7 Porter's Rep. 545, it was held that
where one party was discharged upon the plea of the statute
of limitations, a judgment would be supported upon the ver-
dict of the jury against his co-obligor, and this, although the
plea and replication are joint. The court rest the decision on
the ground that the plea is of matter arising subsequent to the
contract, and is personal to the defendant.
So also, in Palmer, use, &c. v. Severance & Stewart, 10
Ala. Rep. 346, where one joint obligor was discharged by
his plea of usury, and the other, who had induced the person
for whose use the suit was brought to trade for the note, was
thereby estopped, it was held, that it was erroneous for the
court to instruct the jury, if they found the issue in favor of
the first, their verdict should be for both defendants. The
court do not decide that judgment could have been entered
for the one and against the other, had the jury so found, but
merely that a general verdict, concluded the plaintiff from
bringing his subsequent action against the party who was
bound.
In Hall v. Rochester, 3 Cow. Rep. 374, two defendants to
a joint and several promissory note made by three, pleaded
that the note was fraudulently and oppressively obtained,
upon which the plaintiff entered a nolle prosequi as to them,
and took judgment by default against the third ; it was held
the action was discontinued as to all. See also, Max v. Rob-
erts etal. (per Ld. Ellenborough, C. J.) 12 East, 89; 1 Chit.
PI. 35, et seq.; Noke v. Ingham, 1 Wills's Rep. 89 ; Morton
v. Croghan, 20 Johns. Rep. 122 ; Plainer v. Johnson &,
Wheeler, 3 Hill's N. Y. Rep. 476 ; Saunders v. Harris, 5
Humph. (Tenn.) Rep. 345. These authorities, and others
which might be referred to, show quite conclusively, that
unless there is some statute which comes to the aid of the
defendant in error, the present judgment cannot be sustained
against Bussey, but should have been arrested by the court
below.
It then becomes necessary to inquire, what effect the act
of 1840 has upon the case. Clay's Dig. 110, 111, 37, 38,
JANUARY TERM, 1849. 219
Bussey v. The Br. Bank at Montgomery.
39, 40. This act provides that whenever suit shall be com-
menced by the Bank of the State of Alabama, or any of the
branches thereof, on any bill of exchange or promissory note,
it shall be the duty of the attorney to include in the writ or
notice, the names of all the parties liable on the bill or note ;
and when the parties to any such bill or note reside in more
counties than one, duplicate writs or notices may be issued to
the counties in which they reside. If no defence is inter-
posed to such suit, it shall be the duty of the court to render
one judgment against all the parties who are legally before
the court, and against whom a recovery may be had : Pro-
vided, however, that if the acceptor of a bill of exchange is
served with process, a several judgment shall be rendered
against him in all cases where he is liable for a sum different
from the other parties to the bill : Provided, further, that it
shall be the duty of the clerk to indorse upon the execution
which party is drawer, first, second, third indorser, &c. that
the money may be collected out of the party first liable. It
is further provided by the third section, "that if any defence
is made to such suit, and the plaintiff, or either of the several
defendants, shall demand a severance, it shall be the duty of
the court to award the same, and the suit shall proceed to
judgment as if the parties had been severally sued. But if
several suits shall be commenced contrary to the provisions
of the act, the fourth section provides that it shall be the
duty of the court to consolidate the same upon the motion of
the defendants, and to compel the attorney issuing the writ
or notice to pay the costs occasioned thereby, by process of
attachment for contempt: Provided, that nothing in the act
contained shall prevent the plaintiff from discontinuing against
any one or more of the defendants in cases now allowed
by law, and from issuing other process against such parties as
shall not be prosecuted to judgment." This statute was
clearly never designed to take away any remedy the banks
had to recover upon their paper, but the object doubtless was
to save cost and unnecessary litigation and delay. Before its
passage, the bank might have brought separate suits against
each of the parties to this note, and have recovered against
tin- plaintilK in error; for the jury, by their verdict, have af-
firmed his liability. Under this statute, if such suits had
220 ALABAMA.
Bussey v. The Mr. Bank at Montgomery.
been brought, the defendants could have procured their con-
solidation, and taxed the attorney with the costs. In such
case, the suit would progress as though the parties had been
joined in one action, and to deny to the bank the right to
take judgment against any one or more of the defendants,
(though others may make a valid defence) according to the
verdict of the jury, would by implication, be a virtual repeal
of the statute declaring such notes to be joint and several.
We have said the object of the statute was to save cost and
delay, and the court should give it that construction which
will best accord with its object and design. Now in the case
before us, two parties to the bill are sued ; they plead sepa-
rately, different pleas ; the one makes good his defence, but
the other is justly liable for the debt. Shall the bank be
turned round to its action against him separately, after pay-
ing the cost in the present suit ? Would not such construc-
tion of the statute contravene its obvious design? We think
it quite clear that it would. If judgment on the verdict could
not be rendered in this case, the result would be to require
the bank by the operation of the statute, to bring two suits
one by which it ascertains judicially that a party to the
note is not liable, another, to recover from the party or par-
ties who are bound ; else, by bringing separate suits, to incur
the hazard of having the attorney taxed with the cost, and
then a consolidation of the suits on the motion of the de-
fendants. The statute, as its title imports, " changes the man-
ner of bringing suits on bills of exchange and negotiable pa-
per." Each indorsement of a bill of exchange is a separate
contract, yet each of the several indorsers are brought before
the court as well as the drawer and acceptor, and one judg-
ment rendered against all who are liable for the same sum.
In thus uniting various defendants, it would doubtless often
happen some one or more of them might have valid defences,
and it could not have been intended that in proceeding under
such process, the bank must recover against all or none. On
the contrary, it is most manifest, the common law rule which
requires in actions on contracts where several defendants are
joined, that a joint liability must be proved, is wholly dis-
pensed with.
The statute, it is true, provides for a severance at the in~
JANUARY TERM, 1849. 221
Powe and Smith, adm'rs, v. Executors of Tyson.
stance of either of the parties, but this was not designed to
give either party a right to a judgment which could not have
been rendered without it ; but was intended to prevent de-
lay in cases where one party wished to go to trial, and an-
other to continue the cause ; or where one of the defendants
desired to make a defence, in the expense and delay conse-
quent upon which, another might not be willing to unite.
So, where one party insists upon a showing for a continuance
of matters affecting only his own liability, the bank could
pray a severance, and proceed to trial as to the other parties.
Upon a consideration of the whole statute, we feel fully
satisfied that in actions by the Bank of Alabama, or any of
its branches, upon any bill of exchange or promissory note,
the statute of 1840, requiring all the parties to be united in
the same notice, impliedly authorizes a judgment against any
of the parties who may be found by the verdict of the jury
to be liable, although other parties may make good their de-
fence, and be discharged.
Our conclusion is, the judgment must be affirmed.
POWE & SMITH, ADM'RS, v. EXECUTORS OF TYSON.
1. A surety who pays a debt for his principal, six months after his estate has
been declared insolvent, may file his claim against the estate, within six
months afterwards, if final settlement has not been made, although the
creditor had not filed the claim against the estate.
Error to the Orphans' Court of Wilcox.
SELLERS, for plaintiff in error.
JOHNSON, contra.
1. This claim could not have been filed by these parties
within six months after the declaration of insolvency ; be-
cause it did not accrue to them until they had paid it, and if
222 ALABAMA.
Powe and Smith, ad A'rs, v. Executors of Tyson.
it was filed within six months after its accrual to them, it is
clearly within the spirit and equity of the statute to allow it.
The contract of a principal to a note, or other obligation, is
of a twofold character. With the creditor he engages to
perform his contract, and with his sureties by implication,
that he will indemnify them against any loss they may sus-
tain on his account. Both engagements are equally obligato-
ry, but they cannot accrue at the same time and that of the
surety not until the time arrives when he shall have paid the
money for his liability to the creditor. From this moment
his cause of action accrues, and he has eighteen months with-
in which to enforce it against the estate of his principal.
McBroom et al. v. The Governor, $*c. 6 Porter, 43 ; Caw-
thorn v. Weissinger, 6 Ala. 716 ; Hooks & Wright v. Branch
Bank at Mobile, 8 Ala. 580 ; Neil v. Cunningham's Ex'rs, 2
Porter, 171 ; 4 Day's Rep. 476, on a statute orConnecticut
similar to our own.
2. The right of the surety to proceed against the estate of
his principal for contribution, arises from the payment of the
money. And this right is not affected by the omission of
the payee to present it in time. 6 Porter, 43 ; 6 Ala. 716 ; 8
Ala. 580. Therefore the demurrer to the plea, that the claim
had not filed within six months after the declaration of in-
solvency, was properly sustained by the court.
DARGAN, J. Upon the final settlement of the estate of
A. K. Smith, which had been duly declared insolvent, Wm.
Harris and John B. Twitty, executors of Tyson, presented a
claim against the estate for money paid by them as execu-
tors, to the Branch Bank at Mobile, on a note to which their
testator was the security of Smith, the intestate. To this
claim the plaintiff in error objected, because it had not been
filed with the clerk of the county court, within six months
after the estate was declared insolvent. The proof shows,
that Tyson was the security of Smith, and the defendants in
error, as the executors of Tyson, paid the debt to the bank,
after the six months had elapsed ; subsequent to the time
the estate of Smith was declared insolvent, and therefore
they had no cause of action against the representatives of
Smith, until after the six months expired. It did not appear
JANUARY TERM, 1849. 223
Powe and Smith, adm'rs, v. Executors of Tyson,
that the bank had presented the claim to the administrators
of Smith, or had filed it in the clerk's office, within six months
after the estate was insolvent. The orphans' court allowed
the claim against the estate, and to reverse the decree this
writ of error is brought.
The only question presented is, whether the orphans' court,
on the final settlement of an insolvent estate, should allow a
claim which had not been filed with the clerk, in the man-
ner prescribed by the act of 1843, because it did not accrue
to the plaintiff until after the expiration of six months from
the time the estate was declared insolvent.
The language of the act, is, that every person having any
claim against an insolvent estate, shall file the same in the
clerk's office, within six months after the estate is declared
insolvent, and every such claim shall be verified by the oath
of the claimant, &c. Clay's Dig. 194, 10.
It is very clear, that the debt due to the bank by the es-
tate of Smith, was barred under this statute and in their
hands, it should have been rejected; for it was a claim, or
debt then owing. But the executors of Tyson, had no
claim, or demand on the administrators of Smith, until they
paid the debt then, but not until then, did the debt accrue
to them. But it is contended, that as the claim was barred
in favor of the bank, because it was not filed in the clerk's
office, within the time prescribed, it cannot be revived by
the claimant's paying it afterwards ; because, if a debt is
barred by the statute of limitations, as to both principal and
security, and the security pay it, he shall not have the right
to demand and recover the amount of the principal ; for his
payment was voluntary. But it must be observed, that there
is a marked distinction between the case at bar, and the case
supposed. The executors of Tyson were under a legal obli-
gation to pay the debt to the bank, notwithstanding it had
not been filed in the clerk's office against the estate of Smith;
and although legally bound to pay it, they could not be con-
sidered the creditors of Smith, or as having any claim against
his estate, until they paid the debt.
U seems to me, that the statute was intended to operate on
those who had claims or demands against an insolvent es-
tate ; hence the language of the statute, every person having
221 ALABAMA,
Powe and Smith, adm'rs, v. Executors of Tyson.
any claim, &c., shall file the same within six months. Can
this statute operate on one who has neither claim, or demand,
that a court of law could enforce ? We see that one may
have neither claim, or demand, against an estate, within six
months after it is declared insolvent, yet a claim may accrue
to him afterwards, and before the final settlement, by his
merely complying with the legal obligations he had assumed.
If we hold that his claim is barred, we should hold that a
right was taken away by the statute, before that right came
into esse. We cannot believe that the legislature intended
this act to have such effect. It is silent in reference to claims
that come into existence after the expiration of the six
months ; at least nothing is expressly said in reference to
them. It speaks of persons having claims the claim there-
fore must exist before the statute can operate on it, for no
one can have a claim that does not exist.
We come therefore to the conclusion, that if a claim comes
into existence, six months after the estate is decreed insol-
vent, yet it is not to be rejected if filed with the clerk be-
fore the final settlement is made, and within six months from
the time that it vested in the claimant, or that it came into
existence as a claim. We intend, however, to confine our
remarks to such claims, or demands, as may result to one
from the legal obligation, or condition of things existing be-
tween the claimant and the intestate, at the time of his death,
and which accrue to the claimant by the observance of those
obligations on his part, or a failure to observe them on the
part of the intestate. A claim thus coming into life, in fa-
vor of one, cannot be barred by the statute before its exis-
tence, but becomes subject to the operation of the statute as
soon as it does exist.
By these rules, the claim ought not to have been rejected.
The executors of Tyson were under a legal obligation to pay
a debt of the intestate. They had no claim against his es-
tate until they complied with that obligation the estate had
been declared insolvent six months before they paid the debt,
but they filed their claim with the clerk in the manner pre-
scribed by the act, before the final settlement of the estate
was made, and within six months from the time they paid
JANUARY TERM, 1849. 225
Stewart v. Nuckols.
the debt, snd therefore within six months from the time they
had a claim. The orphans' court properly allowed it, and
the decree is therefore affirmed.
STEWART v. NUCKOLS.
1. An execution issued on a judgment, after the death of the plaintiff, is
void, and a sale of land made under it, conveys no title to the purchaser.
Error to the Circuit Court of Macon. Before the Hon.
Geo. W. Stone.
TRESPASS to try title to land, by the plaintiff, against the
defendant in error.
From a bill of exceptions found in the record, it appears,
that the plaintiff was the purchaser of the land sued for, at a
sale under execution, which issued in favor of James H.
Shorter, against Rene Fitzpatrick, and others, and proved
the sale to him, and the deed of the sheriff conveying the
land, <kc. It was admitted, that James H. Shorter was dead
at the date of the issue of said execution, under which the
plaintiff purchased the land, and that more than a term had
elapsed, between the issue of the execution under which the
land was sold, and the last execution preceding it. There-
upon the court charged the jury, that the plaintiff was not
entitled to recover. To which the plaintiff excepted. This
is now assigned as error.
COCKE, for plaintiff ill error.
1. The injunction bond is described with sufficient accu-
racy to authorize a summary judgment, and execution on it.
All that is necessary in the description, is such a degree of
certainty as will enable the court to identify it. Anderson v.
Rhea, 7 Ala. 104 ; Colburn v. Downs, 10 Mass. 20.
Vol. 1 629
226 ALABAM A .
Stewart v. Nuckols.
2. The judgment entry omitted to state the Christian name
of the Mahone who was a party to the confession. This
omission it was competent to supply, by reference to other
parts of the record, or by extraneous proof, and when so sup-
plied, the defect was amendable, and would be considered
as amended, though the amendment was not in fact made.
9 Ala. Rep. 99. The bill of exceptions shows that, by re-
ference to the agreement entered into by the parties to
the judgment at law on the minutes of the court, and other
proof connected therewith, the fact was fully disclosed that
the same Mahone who is described in the injunction bond as
a party to the judgment at law, was in truth the one who
joined in the confession, and thus, the judgment at law and
that described, were clearly identified.
3. It is no objection to the injunction bond as a statutory
bond, that two writs of execution were included in it. Wins-
ton v. The Commonwealth, 2 Call, 291; Elliott et als. v.
Mayfield,4Ala. 417.
4. An execution issued after the death of the plaintiff is
not void, but voidable only. Day v. Sharp, 4 Wharlon, 339;
Jackson v. Robins, 16 Johns. 537; Jackson v. Delancy, 13
Johns. 537; Jackson v. Bartlett, Ib, 361; Woodcock v. Ben-
nett, 1 Cow. 740; 2 Saunders, note b, page 6.
5. The same rule applies in the case of the death of the
plaintiff, and the failure to issue execution in a year and a day
after judgment. Bingham on Judgments, 13 Law Lib. 50,
top ; see also authorities above cited.
6. In Collingsworth v. Horn, 4 Stew. & Port. 237, it is
held, that an execution issued in continuation of a lien ac-
quired during the life time of a defendant, to carry out that
lien as to personal property, is not irregular. There can be
no difference in principle between that case, and one in which
an execution issues after the plaintiffs death to perfect a
judgment lien on land acquired in his life time. The execu-
tion is a mere authority to sell. Q,uin et al. v. Wiswall, 7
Ala. 645. The case of Day v. Sharp, 4 Wharton, presents
the question fully, whether an execution issued after the
death of the plaintiff is void, or voidable only. It was an
action of trespass, and plea of justification by virtue of the
execution. The case of Jackson v. Robins, 16 Johnson,
JANUARY TERM, 1849. 227
Stewart v. Nuckols.
particularly, is in support of the same principle, and also
shows that in this respect there is no difference between an
execution issued after the death of a plaintiff, and one issued
after a year and a day. The case of Woodcock v. Bennett,
is cited to show the distinction between void and voidable
process, and the ground of that distinction.
J. E. BELSER and G. W. GUNN, contra.
1. To authorize a judgment upon an injunction bond, the
latter must describe the execution or judgment enjoined with
sufficient certainty, to enable the court to determine what
execution was intended to be superseded. Anderson v. Rhea,
7 Ala. R.-104.
2. Where there -is a variance in the name of one of the
defendants in the execution, the same is void. The security
to the bond has a right to stand upon the precise terms of
his contract. Sanford et al. v. Richardson, 5 Ala. R. 618;
Meredith v. Richardson, 10 Ala. 829 ; 4 Ala. 279 ; 4 Hen.
& Mun. 180.
3. The judgments upon statutory bonds will not be sus-
tained, unless all the pre-requisites are complied with, and
more particularly will this principle be adhered to, when the
judgment is of that character, that a writ of error will not lie
to reverse it. Allen v. Hays, 1 Stew. 10 ; Taylor et al. v.
Powers, 3 Ala. 285 ; Hopkins v. Laud, 4 Ib. 427.
4. A purchaser of lands at sheriff's sale under judgment at
law, takes nothing by his purchase, when the judgment is
for any cause suspended in its operation; the judgment is a
part of his chain of title, and must be effective at the date of
the sale of the land. Driver v. Spence, 10 Ala. 540 ; Bunn
v. Webb, 3 Ib. 109.
5. The issuance of an execution, after the death of a sole
plaintiff in the judgment, is wholly void, and if the plaintiff
dies after the execution is delivered to the sheriff, but before
levy, the same abates. Abel v. Ward, 8 Mass. 79; Carter
v. Simpson, 7 Johns. 535 ; Holloway v. Johnson, 7 Ala. 660;
2 Bibb, 198; 7 Wend. 398; 9 Ala. 335.
6. The judgment in this case, which was suspended by the
injunction, as shown by the pleadings, all bearing the same
number, and describing the debt upon which the judgment
228 ALABAMA.
Stewart v. Nuckols.
was rendered, was against one of the Mahones ; whereas the
bond described a judgment against a different one differ-
ence, Edward F. and John, clearly a variance.
COLLIER, C. J. In Collingsworth v. Horn, 4 Stew. <
P. Rep. 237, it was decided that where a writ of fieri facias
had issued against the estate of an intestate in his life time, an
alias and pluries might be issued thereafter, and personal
property levied on and sold in order to satisfy the judgment ;
that the first writ created a lien which the retrospection of
the latter, continued and perfected. In fact, the several writs
were regarded as a mere continuation of the process, which
was necessary to complete the execution. But it was held
in Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679, that that
decision was inapplicable where real estate was the subject
of levy and sale. The original fi. fa., it was said, originated
no lien upon the " lands and tenements " of the debtor, that
it cannot connect itself with the alias and pluries for the pur-
pose of showing their regularity, or imparting to them an en-
ergy which they do not intrinsically possess. " The judg-
ment itself operates a lien upon the real property; that is, it
gives a right to have that property sold, in order that it may
be satisfied. By the death of the defendant, his lands de-
scend to his heirs, or vest as he may devise by will, and the
mandate of an execution which directs the sheriff to make of
them the amount of a judgment, must be wholly inoperative
and void. In fact, such a writ could never be executed in
consequence of the death of the defendant, which has cast
his estate upon other proprietors."
In Mansony and Hurtell v. the U. S. Bank et al. 4 Ala. R.
735, it is intimated in no equivocal terms that a fieri facias
which requires money to be made of the estate of a deceased
defendant, although it be an alias or pluries, following an
original which issued in the life time of the defendant, is ab-
solutely void ; and if such process is executed, it will be re-
garded as a nullity from the beginning, so that a purchaser
under it acquires no title as against heirs or devisees. See
cases there cited ; also Erwin's lessee v. Dundas et al. 4
How. Rep. 58 ; Fryer v. Dennis, 3 Ala. Rep. 254 ; Cooper v.
May, 1 Harring. Rep. 18 ; Samuel v. Zachery, 4 Ired. Rep.
JANUARY TERM, 1849. 229
Stewart v. Nuckols.
377; Davis v. Helm, 3 Smedes & M. Rep. 17; Hubert v.
Williams, Walker's Rep. (Miss.) 175 ; Holloway v. Johnson,
7 Ala. 660 ; Wood v. Harrison, 1 Dev. & Bat. 356 ; Perkins
v. Ballinger, 1 Hayw. 367; Dudley v. Strange, 2 Hayvv. 12.
Though the plaintiff should die within a year and a day
after he has obtained judgment, his personal representative
cannot have execution against the defendant, without a scire
facias. If the defendant die within that period, the plaintiff
cannot have an elegit under the statute of Westminster, the
2d Ch. 18, against his lands in the hands of his heir or terre-
tenant, or generally any other execution without a scire fa-
cias against his heir, or terre-tenant, and personal represen-
tative. The rule being, that where a new person who was
not a party to the judgment, or recognizance, derives a ben-
efit by, or becomes chargeable to the execution, there must
be a scire facias to make him a party to the judgment, or re-
cognizance. Jefferson v. Morton et al. 2 Saund. Rep. 6,
note 1.
In Stymets et al. v. Brooks, 10 Wend. Rep. 206, it was
decided that land cannot be sold on an execution issued af-
ter the death of the defendant, although it is tested as of a
day previous to the death. The reasons given, are, that a
new party is affected by the execution, and there would be
a discrepancy between it and the record, and indeed there is
no authority for the process. The court consider the English
doctrine which sanctioned the testing of an execution of a
day previous to the defendant's death, so as to give it a re-
trospective lien upon the goods and chattels, and say that it
never had any application to an execution against the lands
of the debtor.
So in Hildredth v. Thompson, 16 Mass. Rep. 191, it is said
by the common law, all proceedings in a suit at law are slop-
ed by the death of one of the parties. If either of them die
before judgment, no judgment can be entered ; if after judg-
ment no execution can issue. No authority was known, ei-
ther in England or this country, for issuing an execution,
where a party to the judgment was dead, and if an execution
issued under such circumstances, it was said it " must be con-
sidered voz'rf."
True, in Day v. Sharp, 4 Whar. Rep. 339, it was held,
230 ALABAMA.
Stewart v. Nuckols.
that an execution issued in the name of the plaintiff, who is
dead, without substituting his personal representatives, was
not absolutely void, and it furnishes a justification to the
party who caused it to be levied. The court say, that " in
case of the plaintiff's death, no doubt it is the duty of the
party who issues process of execution, to substitute the name
of his executors or administrators ; and as there is a new par-
ty, to issue a scire facias. But the not issuing of a scire fa-
cias where the law requires it, has not per se been consider-
ed as making an execution void, or the party issuing it a
trespasser." The court seemed to assimilate the case before
it to a fieri facias sued out after a year and a day after the
rendition of the judgment, which is confessedly nt void, but
merely voidable by some direct proceeding. See Jefferson v.
Morton, et al. supra, note 1 ; Jackson v. Bartlett, 8 Johns.
Rep. 361. It is further said, that " the line of distinction
has not been accurately drawn as to all the cases where the
process is merely erroneous, and those where it is an abso-
lute nullity ; and perhaps each case must depend in some
measure on its own circumstances; but as the issuing of the
execution, if done by a party entitled to collect the money
upon it, is rather a defect in the formal mode of proceeding,
that is to say, the use of the name of the deceased plaintiff,
instead of substituting executors or administrators, and issu-
ing a scire facias, than a substantial defect, it seems to me
on the authorities, that it must in such case be considered as
an erroneous proceeding, not an irregular and void one."
But whether the execution was merely erroneous, or abso-
lutely void, in the legal sense of those terms, it was said to
be a sufficient justification for the party causing it to be issu-
ed, when sued in an action of trespass, as well as for the of-
ficer, or other person assisting in the execution of it, if th 
