prior purchase, and Tatham's authority, are calculated to mislead and confuse the jury, and should not be given. Reversed and remanded. JONES et al. v. RICHARDSON et al. (Supreme Court of Alabama. December 19, 1888.) MORTGAGES-FORECLOSURE-REDEMPTION-PARTIES. In an action by heirs of a deceased mortgagor to redeem from foreclosure, where all payments on the debt were made by the heirs, and no effort is made to charge the personal assets of the mortgagor's estate with the debt, the personal representative of the estate is not a necessary party.1 Appeal from chancery court, Butler county; JOHN A. FOSTER, Chancellor. A bill filed by Jack Jones and his sister, Osceola Jones, as the only heirs of Jane Jones, deceased, their mother, against the defendants, J. C. Richardson, as executor of John T. Perry, deceased, and Herman P. Dohrmeier, to redeem certain lands conveyed by their mother, the said Jane, during her lifetime, to the said John T. Perry, deceased. Judgment for defendants, and complainants appeal. Edward Crenshaw, for appellants. John Gamble and Richardson & Steiner, for respondents. He SOMERVILLE, J. The bill is one to redeem, brought by the heirs of a deceased mortgagor. A demurrer was interposed, based on the suggestion that the personal representative of the mortgagor was a necessary party to the bill, and this demurrer was sustained by the chancellor. There may be some cases where the personal representative of the mortgagor would be an indispensable party to such a proceeding, but this is not one of that character. would only be a proper, but not a necessary, party, under the facts alleged in the bill. The heirs are unquestionably entitled to redeem by paying the mortgage debt, with interest, if this be the only incumbrance on the land held by the mortgagee, as is alleged and admitted on demurrer. The decree to be rendered does not affect the estate of the mortgagor in any respect. No payments are shown to be made by her in her life-time, but all payments made on the mortgage debt are alleged to have been made by the heirs themselves. Nor does the bill contemplate the abatement of the debt by an appropriation of the rents and profits of the land to the prejudice of the estate. Nor is any effort made to charge the personal assets of the mortgagor's estate primarily with this debt. No accounting is therefore needed between the mortgagor's personal representative and the estate of the mortgagee, he also being shown to be dead. The offer of the complainants is to pay the mortgage debt themselves, and the sole party entitled to recover it is before the court. The chancellor erred in sustaining the demurrer. Story, Eq. Pl. (9th Ed.) §§ 182– 186. The case is entirely different from that of a bill filed by a mortgagee to foreclose a mortgage, or enforce a vendor's lien, where the effort is to establish a debt against the mortgagor's estate, and subject real assets to its payment. In such cases the deceased mortgagor's personal representative has been held to be a necessary party for manifest reasons, which have no application to this case. Moore v. Alexander, 81 Ala. 509; Gardner v. Kelso, 80 Ala. 497, 2 South. Rep. 680; Bell v. Hall, 76 Ala. 546; Dooley v. Villalonga, 61 Ala. 129. Reversed and remanded. 1 As to who are necessary parties to a foreclosure suit, see Merritt v. Daffin, (Fla.) 4 South. Rep. 806, and note; Graham v. Fountain, 2 N. Y. Supp. 598; Bank v. Paper Co., (N. J.) 15 Atl. Rep. 388. BROWN et al. v. ROME & D. R. Co. (Supreme Court of Alabama. December 18, 1888.) * * * 1. EMINENT DOMAIN-LANDS OF INFANT-AGREEMENT-PLEADING. Under Sess. Acts Ala. 1884-85, p. 223, relating to condemnation of land by defendant company, providing that if the owners of the lands cannot agree with the company as to damages, "or, in case such owner is an infant, such value or damages shall be ascertained in the manner directed by the general laws," it need not be alleged nor proved in the case of lands owned by an infant, although he has a guardian, that any previous attempt has been made to agree on the damages. 2. SAME-LAND IN EXCESS OF RIGHT OF WAY-PETITION. Although a railroad company may, for certain purposes, acquire an easement in lands beyond the 100 feet for right of way allowed by the statutes, such extra condemnation cannot be allowed under a petition which prays only for a right of way, nor unless the petition specify the purpose for which the excess over 100 feet is prayed, and to what portion of the line it applies. 8. SAME-COMPENSATION-PAYMENT TO GUARDIAN AD Litem. A decree in condemnation proceedings should not order the damages to be paid to the guardian ad litem of an infant owner. It should be kept in court until the appointment of a guardian, or until some one legally authorized appeared to claim it. 4. JURY-CHALLENGES IN CONDEMNATION PROCEEDINGS. In Alabama, there being no statute authorizing peremptory challenges of jurors in condemnation proceedings, no challenges can be made except for cause. Appeal from probate court, Cherokee county; ROBERT R. SAVAGE, Judge. This was a proceeding commenced in the probate court of Cherokee county, on May 11, 1887, to condemn for railroad purposes certain lands alleged to be the property of Willie Brown and other respondents. The respondents demurred to the petition, on the grounds that Willie Brown was shown by the petition to be a married woman and a minor; that the said lands a part of which was sought to be condemned were shown to be her statutory separate estate; that the petition failed to show what interest Willie Brown and other appellants had in the lands; that the petition failed to allege that prior to filing it there was any offer or effort on the part of the petitioner to agree with the said respondents as to the damages for the appropriation of the lands sought to be condemned; that the petition was too vague and uncertain in its description of the land; and that the petitioner sought to condemn a greater quantity of land, and asked for greater rights and privileges, than allowed by law. The court overruled each one of these demurrers. Upon the trial the guardian ad litem of the appellants moved the court to quash and set aside the service of notice of the proceedings, on the ground that there was no provision of law authorizing an appointment of a guardian ad litem in the present case; that he was an improper party, and that the service of notice was not properly served upon the appellants. The court overruled this motion. Upon the impaneling of the jury, the respondents offered to peremptorily challenge one of the jurors, which the court refused to allow to be done. The respondents, represented by the guardian ad litem, appeal, and assign the several rulings of the court upon the demurrers, the motion to quash, the ruling upon the challenging of jurors, and the judgment rendered by the court upon the verdict of the jury, as error. Matthews & Daniel, for appellants. Walfen & Son, for appellee. STONE, C. J. The present record presents for review only that part of the probate court proceedings which affects the interests of Thomas P. McElrath's children. The proceeding was instituted by the railroad company to obtain condemnation of certain interests in real estate for the use of the railroad company, and is governed by article 2, c. 17, tit. 2, pt. 3, Code 1876, commencing with section 3580, and by the act to amend the charter of the Rome & Decatur Railroad Company, approved December 9, 1884, (Sess. Acts, p. 223.) "The authority given by the statute to railway companies to take the lands of indi viduals by compulsion must be exercised strictly in conformity to the terms of their charters, and the general laws defining their powers." 5 Wait, Act. & Def. 284, 286; Sharp v. Johnson, 40 Amer. Dec. 259, and note; 1 Redf. R. R. § 64; Pierce, R. R. 170, 494; Mills, Em. Dom. § 92; Chandler v. Hanna, 73 Ala. 390. The proceedings in the present case were instituted and concluded before the Code of 1886 went into effect. It is therefore governed by the Code of 1876, and by the amended charter of the railroad company. Sess. Acts 1884-85, p. 223. The petition refers to certain exhibits, and makes them part of it. These exhibits are not found in the record before us. Possibly they would answer some of the objections to the sufficiency of the petition which counsel rely on. If this could be true of all the objections, it might cast on us the duty of having the record made complete before we announce our judgment. We find some imperfections, however, which the exhibits could not heal, and which render a reversal inevitable. A certiorari could accomplish no good result, and we will not order it. One objection urged to the petition is that it should have averred that the owners of the land, being infants, were without guardians, and without trustees; or that it should have averred that an offer and attempt had been made to purchase such right of way from the guardian or trustee, and that they could not agree on the value of the damages. In the absence of the amendatory act of incorporation, (Sess. Acts 1884-85, p. 223,) this position would appear to be well taken, (Code 1876, § 1832; Mills, Em. Dom. § 105.) The amendatory act (section 6) changes the rule as to the Rome & Decatur Railroad Company. Its language is "that if the owner or owners of the lands which may be required for the uses and purposes in this act mentioned cannot agree with said corporation on the value of the damages, or in case such owner is an infant, non-resident, or non compos mentis, such value or damages shall be ascertained in the manner directed by the general laws of the state of Alabama in such cases made and provided." Under this statute we hold that when the owner of the lands is a minor, even though he has a guardian or trustee, no previous attempt to agree on the damages need be shown, either in the petition or proof. There is nothing in this objection. A second objection to the proceedings is that both in the petition and in the order the right of way petitioned for and condemned is more than 100 feet wide. The right to condemn for "right of way" under the general law (Code 1876, § 1830) is limited to "a strip, tract, or parcel of land not exceeding one hundred feet in width." So, under the amendatory charter, (Sess. Acts 1884-85, p. 224,) the width is likewise limited. "Not exeeding one hundred feet in width" is its language. We do not deny that equally under the general law, (Code 1876, § 1830, subds. 2, 3,) and under the amendatory statute, (section 5,) the railroad corporation may acquire an easement in lands, beyond the 100 feet in width, for any of the purposes therein enumerated. We need not state or repeat the purposes here. They are expressed in the statutes. When, however, it is desired to obtain a strip broader than 100 feet, the petition must state the purpose for which the extra condemnation is sought, and it must be one or more of the purposes for which the statute makes provision. Such extra condemnation cannot be awarded under a petition which prays only for a right of way. The petition in the present case is defective, in that it does not specify the purpose for which the easement was prayed in excess of the 100 feet. It should also describe the portion of the line at which the excess of width is sought. This can be done by furnishing an initial point, with such description that a surveyor can fix it with certainty. When, as in this case, the strip condemned is not of equal width, entirely across any particular tract or holding, it must not be left in uncertainty at what point the widened strip will fall. The proceeding must individualize and furnish the means of certainly locating the situs and extent of the condemnation. The lands of the appellants, through which the right of way was sought and obtained, are described as N. E. sec. 36, township 9, range 9 E. The description in the decree of condemnation is: "For the distance of 2,660 feet through the S. of N. E. sec. 36, T. 9, R. 9 E., as shown by Exhibit B, hereto attached, to be 200 feet wide for 1,800 feet, and 66 feet wide for 860 feet." As we have said, the exhibit is not in the record, and we cannot know what it discloses. It may show the point at which the wider strip commences. The present record does not. The decree should not have ordered the damages or condemnation money to be paid to the guardian ad litem. It should be kept in the court until a guardian was appointed, or some other person legally authorized appeared to claim it. The statutes under which these proceedings were had make no provisions for peremptory challenge of jurors. Unless given by statute, no such right exists. Convers v. Railroad Co., 18 Mich. 459; Railway Co. v. Howard, 20 Mich. 18; Davis v. Railroad Co., 60 Me. 303. Only challenges for cause should be allowed in cases like the present. Reversed and remanded. HARMON v. LEHMAN et al. (Supreme Court of Alabama. December 18, 1888.) 1. USURY-ADVANCES BY COMMISSION MERCHANTS-FUTURE SHIPMENTS. A commission merchant advanced to a planter money, taking his note therefor due in the next cotton season, with interest from date, with an additional agreement that for every $10 loaned, the planter would deliver to the merchant one bale of cotton for storage and sale on commission. Held, that where there was a reasonable expectation that the planter could deliver the cotton, the contract was not usurious, and was binding. 2. SAME-EXCESSIVE CHARGES. In such a case, where the price agreed to be paid as commission for the sale of the cotton is about 50 per cent. more than the customary price charged where no money is advanced, the transaction is usurious.1 Appeal from chancery court, Montgomery county; THOMAS COLEMAN, Chancellor. A bill was filed by John F. Harmon against Lehman, Durr & Co., partners in trade as warehousemen and commission merchants in the city of Montgomery, and sought to enjoin a sale of lands under a mortgage, which the complainant and his wife had executed to the defendants, and for an account, and for the redemption of the lands so conveyed, charging at the same time usury. The defendants answered, denying the charge of usury, and by a cross-bill, regularly filed, asked for the foreclosure of the mortgage. On final hearing on the pleading and proof, the following opinion was delivered by Chancellor THOMAS W. COLEMAN: "The case made by the bill is that Harmon Bros. borrowed money from Lehman, Durr & Co., to be used in the purchase of cotton, and gave their father, John F. Harmon, as security, who signed the note, and executed a mortgage upon certain lands belonging to him, which are described in the bill, with the understanding that the money was to be used in the purchase of cotton, which, when sold, was to be applied to the payment of the mortgage debt. The bill further alleges that the loan was usurious. The bill alleges the purchase of cotton with the money, and asserts that, if the proceeds had In general, as to what constitutes usury, see Nichols v. Osborn, (N. J.) 3 Atl. Rep. 155, and note; Bonus v. Trefz, (N. J.) 2 Atl. Rep. 369, and note; Merck v. Mortgage Co., (Ga.) 7 S. E. Rep. 265, and note; Keagy v. Trout, (Va.) Id. 329, and note. been applied according to the agreement, the mortgage debt would be paid; and it concludes with an offer to pay any balance that might remain unpaid. Respondents admit that Harmon Bros. desired to borrow money, and their refusal to loan without security; also the execution of the note and mortgage, and the loan of $5,000; but they deny that the loan was to Harmon Bros., and deny that it was a part of their original agreement that the money was to be used in the purchase of cotton alone, or that the proceeds of the cotton purchased with the money was to be applied to the payment of the debt secured by the mortgage. They also deny any usurious intention in connection with the loan, and ask a foreclosure of the mortgage. This short statement presents the main points for consideration. "Taking detached portions of the complainant's testimony, it may be that his proof sustains the case made by the bill; but, considering his evidence as a whole, it is far from satisfying the court that he is entitled to all the relief asked for in the bill. In complainant's deposition T. B. Harmon uses the following language: We stated to him [meaning John F. Harmon, their father] that we wanted to make arrangements for him to borrow some money, and for him to be responsible, or bind his lands for that amount, and let us have some money to buy some cotton; and that when we sold the cotton we would take up the mortgage. Our father said, that was all right.' Is there any reason why other portions of complainant's testimony should have more weight than this simple statement, which is so consistent with the entire transaction and proceedings from that time on, and with John F. Harmon's own conduct? He evidently understood that the money was borrowed in his name, or else why give the check to Harmon Brothers? If he understood that he was simply a surety, and Harmon Brothers the principals, by what process of reasoning could he come to the conclusion that the money was placed to his credit-a mere surety-by Lehman, Durr & Co., instead of to the credit of the principals? It may be said that equity looks at the real transaction of the parties as it was, and not as it appears to be. That may be true; but equity cannot prescribe the terms and securities upon which a man may lend his money, provided those terms do not contravene some statute or public policy; nor will a court of equity change those terms. As between John F. Harmon and his sons, he doubtless borrowed the money for them. Не was willing to trust them. But as between the complainant, Harmon Brothers, and Lehman, Durr & Co., the latter evidently has the right to prescribe the terms of the loan. The note and mortgage bear date January 26, 1886. T. B. Harmon testifies that it was not signed until several days after this date, but was signed before the money was drawn by them. Why do we find them on the 3d February using this money for other purposes than to buy cotton, if it was to be used only in the purchase of cotton? Considering the whole evidence of the complainant together, it fails to impress the court favorably. It must not be understood that the conversations between John F. Harmon and Harmon Brothers, in the absence of Lehman, Durr & Co., or some member or agent of the firm, are considered by the court as legal evidence, or as binding upon them, unless communicated, and so as to have entered into the making the contract for the loan. Without pressing upon the question whether Harmon Brothers were the agents of Lehman, Durr & Co. in making the trade with the complainant, as insisted by him, we simply state that one who deals with an agent does so at his peril; and the proof does not sustain the claim that Harmon Brothers were authorized by respondents to make said contract. When the complainant's evidence is considered in connection with respondents' testimony, we cannot perceive any reason why complainant should have the proceeds of the cotton bought and paid for with the borrowed money, applied to the mortgage debt. The statement by Harmon Brothers that the respondents were directed to sell the 77 bales of cotton, and so apply the proceeds, is not sustained by the evidence; and the application |