Thomas, 28 Grat. 130. See, also, Ex parte Grace, 12 Iowa, 208; In re Blair, 4 Wis. 521.

In the present cases very strong, if not unanswerable, arguments may be made, why the defendants should have the amounts of their alleged indebtedness ascertained by a jury, as the constitution provides. 1 Story, Eq. Jur. §§ 71, 72. And if we could regard the question as fairly open to debate, we would probably hesitate long before granting to complainants the relief they pray, in the form in which it is claimed. But we feel that we are not at liberty to treat the question as res integra. On February 24, 1860, the act was approved, "to allow creditors without liens to file bills for the collection of debts in certain cases." It was enacted "that a creditor without a lien may file a bill in the chancery court to subject to the payment of his debt any property which had been fraudulently transferred, or attempted to be fraudulently conveyed, by debtors." That act was carried through the Codes without change. Code 1867, § 3446; Code 1876, § 3886; and Code 1886, § 3544. The only claim of equitable ground in that statute was the fraud imputed, which is not always and per se a subject of equity jurisdiction. A majority of this court so held in Smith v. Cockrell, 66 Ala. 64. See, also, 2 Pom. Eq. Jur. § 914, and note. In the absence of statute it is certainly not a ground of equitable jurisdiction, when the gravamen of the complaint is that tangible, personal property has been conveyed in fraud of creditors. Yet through all these years relief has been granted to creditors without a lien, in the chancery court, and under that statute. Reynolds v. Welch, 47 Ala. 200; Todd v. Neal, 49 Ala. 266; Crawford v. Kirksey, 50 Ala. 590; McAnally v. O'Neal, 56 Ala. 299; Lide v. Parker, 60 Ala. 165; Evans v. Welch, 63 Ala. 250; Lehman v. Meyer, 67 Ala. 396; Bromberg v. Heyer, 69 Ala. 22; Weis v. Goetter, 72 Ala. 259; Harris v. Moore, Id. 507; Zelnicker v. Brigham, 74 Ala. 598; Mathews v. Insurance Co., 75 Ala. 85; Jones v. Massey, 79 Ála. 370; Carter v. Coleman, 82 Ala. 177, 2 South. Rep. 354. If there be any discrimination between sections 3544 and 3545, in the matter of the constitutional obstacle, it is certainly in favor of the later enactment. Discovery is always a ground of equity jurisdiction, but fraud is not. If adequate relief can be obtained in a court of law, fraud will not uphold the jurisdiction of a court of equity. We are not able to draw a distinction between the older statute, under which we have so often granted relief, and the later enactment, assailed in these cases. The chancellor rightly overruled the demurrer, based on the denial of trial by jury. Would it not be well, however, in cases like the present, which sound largely in damages, for the chancellor to have the questions of indebtedness, and its amount, submitted to a jury? And would it not be well to so amend this statutory system as to secure a jury trial to either party, if demanded? Some courts, to carry out what they conceived to be their duty under the constitution, have had questions of similar character submitted to a jury, where the statutes under which they were acting appear to have been silent on the subject. Com. v. Walter, 83 Pa. St. 105; State v. Allen, 5 Kan. 213.

The present proceeding is a statutory remedy, which must be substantially conformed to, to authorize relief. To justify more than one separate creditor in uniting as complainants in one and the same suit, they must be judgment creditors, with executions returned "no property found.” Code 1886, § 3546. The statute does not allow separate creditors without a lien to become common suitors; and while we may believe the legislature would have extended the privilege to them, if it had occurred to that body, we are without power to supply the omission. We may readily suppose a reason why separate creditors, having the amounts of their claims made certain by judgments recovered, should be allowed to unite, while the same privilege would not be accorded to simple contract creditors. But we need not speculate about nonexpressed motives or objects. The law is so written, and we cannot change it. In the case of the Southern Railway Construction & Land Company, the

tenth assigned ground of demurrer ought to have been sustained. In the further prosecution of these cases, the principles settled in Ex parte Hardy, 68 Ala. 303, must not be overlooked. In the case of McKenzie against the Montgomery & Florida Railway Company the decree of the chancellor is affirmed; in the case against the Southern Railway Construction & Land Company, reversed and remanded.

GRIEL v. LOMAX et al.

(Supreme Court of Alabama. January 14, 1889.)

1. ASSIGNMENT-CONTRACT FOR SALE OF LANDS-WARRANTY OF TITLE.

An assignment by the holder of a contract of sale of land, of all the assignor's "right, title, and interest" in the land, without covenants of warranty, seisin, or future enjoyment, transfers only such interest as the assignor had, and does not make him liable for a failure of title.

2. SAME-FRAUD OF ASSIGNOR-RIGHTS OF ASSIGNEE.

But an intentional concealment by the assignor of the fact that he and his co-vendees in the contract were bound to execute joint notes for the purchase price amounts to legal fraud, entitling the assignees to recover from him the consideration paid.

3. EVIDENCE-PAROL, TO VARY WRITTEN ASSIGNMENT.

Evidence of a contemporaneous oral agreement by the assignor that, if the vendor should fail to make a deed to the assignees, he would return the consideration, and would guaranty that “it would be all right," is inadmissible, as changing the terms of the written assignment.

4. SAME-MATERIALITY.

Evidence that after the assignment the assignor had a conversation with his covendees, who then told him that they would not sign joint notes with the assignees, and would have nothing more to do with the contract, is admissible to show the materiality of the concealed fact that the notes were to be signed jointly, and that the assignees were prejudiced thereby.

5. PLEADING-COMMON COUNTS-DEMURRER.

Where a complaint contains the common counts in the form prescribed by the Code, a demurrer to the entire complaint, and not to any particular count, is properly overruled.

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge. This action was brought to recover $100 paid by plaintiffs to defendant, Jacob Griel, upon a contract of purchase. The suit grew out of a transaction betwen defendant and plaintiffs concerning the sale by the former to the latter of his undivided interest in a certain lot situated in the city of Sheffield, Ala. Griel claimed an interest in said lot under a contract of sale, entered into by A. H. Moses on the one part, and Griel, C. L. Matthews, and J. C. O'Connell on the other. By this agreement, Griel, Matthews, and O'Connell were to make a cash payment of part of the purchase money, and execute their joint notes to Moses for the deferred payments. The cash payment was to be made, and the joint note executed, on the delivery of the deed to Griel, Matthews, and O'Connell. After this contract of sale Griel sold to plaintiffs his interest in the lot by a contract in writing, telling them that it was an undivided one-third interest, and that they "would have to pay in cash and by their notes one-third of the purchase money." By the written contract Griel sold to plaintiffs "all his right, title, and interest" in the lot, without any covenants of warranty or seisin. Matthews and O'Connell, as witnesses for plaintiffs, testified that they refused to have anything to do with the purchase of the lot in about a month after the contract of sale was entered into between them, Griel, and Moses; and upon their being asked what they said, upon being informed by defendant Griel that he had sold his interest in the purchase to plaintiffs, they both answered that they then told Griel that they would have nothing more to do with them," (the lots;) saying at the same time that they did not wish to sign the notes for the purchase of the lots with plaintiffs. Defendant objected to these questions, and, his objection being

overruled, and the witnesses allowed to answer, moved the court to exclude the answers from the jury. This the court refused. Plaintiffs then offered to prove by their own testimony that before the execution and delivery of the contract of sale between plaintiffs and defendant, and also after the delivery of said contract, and the payment of the sum agreed on, defendant said to them that "he would guaranty that it would be all right, and if not he would refund the money;" which testimony the court admitted. The court charged the jury that, if they believed all the evidence, they must find for the plaintiffs. There was verdict and judgment for plaintiffs, and defendant appeals.

Arrington & Graham, for appellant. Geo. M. Marks, for appellees.

SOMERVILLE, J. The right acquired by a vendee of land, under a valid executory contract of purchase, is a valuable legal right, capable of being sold and assigned to a subvendee, and such assignment will constitute a sufficient consideration to support a promise on the part of the purchaser to pay money. It is nothing more than the familiar case of an assignment of a contract to purchase land. 2 Add. Cont. (Morg. Amer. Ed.) §_532; Meyer v. Mitchell, 75 Ala. 475; 1 Amer. & Eng. Cyclop. Law, 826, 827, 842, 843.

The interest acquired in the land by Griel, under the contract of purchase from Moses, was prima facie a valuable consideration, sufficient to support the promise of the appellees to pay therefor a pecuniary consideration in return. If there was no fraud in the sale, either by intentional misrepresentation or concealment of some material fact by the vendor or assignor, Griel, the purchasers, had they been sued for the purchase money, could not have set up as a defense to the action the defective title of such vendor by way of a failure of consideration. The contract purports on its face to be nothing more than the transfer and assignment by Griel to Lomax and his associates of all of the assignor's "right, title, and interest" in a certain piece of real property which one Moses had contracted to sell and convey to said Griel and two other named persons as his co-vendees. There are no words of warranty used, and no covenant of seisin or of future enjoyment is stipulated for in the contract of assignment. Where this is the case, the rule is the same in the sale of an interest in land as of goods, where the vendor is out of possession. The doctrine of caveat emptor applies, and the buyer, having neglected to protect himself by a warranty, in the absence of fraud, will be held by the court to have purchased at his peril. The rule was so stated by Chancellor KENT in Frost v. Raymond, 2 Caines, 188, decided as far back as 1804, where it is shown that the same principle prevailed in England, and it is now fully supported by authority in this country. In Roswall v. Vaughan, Cro. Jac. 196, in the court of exchequer, it was said "that if one should sell lands wherein another is in possession, or a horse whereof another is possessed, without covenant or warranty for the enjoyment, it is at the peril of him who buys, and not reason that he should have an action by the law, where he did not provide for himself." Chancellor KENT quotes and approves this case, and also cites the case of Medina v. Stoughton, 1 Salk. 211, where Lord HOLT observed that, "if the seller of goods have not the possession, it behooves the purchaser to take care-caveat emptor-to have an express warranty or a good title; and so it is in the case of land, whether the seller be in or out of possession; for the seller cannot have them without a title, and the buyer is at his peril to see it." So in the case of Bree v. Holbech, 3 Doug. 654, it was ruled by Lord MANSFIELD, in the court of king's bench, that an action would not lie to recover back money paid for the purchase of a mortgage deed, which afterwards turned out to be a forgery, the assignment containing no warranty for the goodness of the title. It is unnecessary that we should indorse the soundness of the latter ruling. The case is entirely distinguishable from that of one who has contracted to sell and convey a particular interest or estate in

land, and it turns out that the vendor is unable for want of title to transfer such interest or estate pursuant to his agreement. The purchaser, being evicted, or being out of possession, has been held entitled in such case to recover back the purchase money, on the ground that the vendor had never transferred to him that which he had agreed to sell and the vendee had agreed to buy. 2 Add. Cont. § 533; Cooper v. Singleton, 70 Amer. Dec. 333, note, 340. The rule may, in other words, be stated to be that when one purchases an interest in land, whether legal or equitable, and there is no fraud in the sale, and the purchaser has neglected to protect himself by taking covenants, he has no remedy, upon failure of title, either at law or in a court of equity. Abbott v. Allen, 2 Johns. 519, 7 Amer. Dec. 554, and note, 558; Cullum v. Bank, 4 Ala. 21, 37 Amer. Dec. 725, and note, 738; Tobin v. Bell, 61 Ala. 125; Strong v. Waddell, 56 Ala. 471; Woodruff v. Bunce, 9 Paige, 443; 2 Add. Cont. 533. The sale or assignment, made by Griel to appellees, of "his right, title, and interest" in the land agreed to be sold by Moses to Griel, Matthews, and O'Connell, transferred whatever interest the assignor owned without warranty of title or covenant for future enjoyment.

It is insisted, however, that there was fraud in the sale on the part of Griel; that he intentionally concealed from his vendees the material fact that joint notes for the purchase money were to be executed by him and his associates, Matthews and O'Connell, to Moses, as one of the conditions of the purchase. If this be true, and the appellees were induced to enter into the purchase by reason of a deceit practiced on them such as constituted a legal fraud, the contract of sale would be void, and the plaintiffs would be entitled to recover the money paid by them under the contract, with interest. The question of fraud vel non is one for the jury, under proper instructions from the court.

The effect of the oral evidence offered by the plaintiffs, showing a promise by Griel to return the money in the event Moses failed to make the deed to the plaintiffs, and to guaranty that "it would be all right," was to vary the legal purport of the written assignment, as we have above construed it; and such evidence, therefore, was inadmissible, and should have been excluded. While parol declarations, contemporaneous with the contract, are often admissible to explain the consideration, the courts are careful to restrain such evidence to its legitimate office of proving a mere failure, illegality, or other like feature of the consideration, and will not, in the absence of fraud, allow it to "destroy the binding efficacy of the written contract, by varying its effect." Long v. Davis, 18 Ala. 801. While parol evidence is always admissible in actions ex delicto, or in defenses based on the tort or deception practiced by a false warranty, to show that the contract was induced by an oral warranty, fraudulently given by one contracting party for the purpose of inducing the other to consent to the bargain, the rule is different in actions ex contractu, where the question of fraud does not arise. In this class of cases oral evidence of a warranty, where the written contract contains none, is not admissible, because "its effect is clearly to vary the terms of the written instrument, by superadding another term or condition not expressed by the parties." Tabor v. Peters, 74 Ala. 90; 1 Pars. Cont. *589, 590; 2 Add. Cont. §629. Such, in our opinion, was the effect of the testimony of the witnesses Sayre and Lomax, touching the point under consideration. Any oral promise to guaranty his title, made by Griel, prior to or contemporaneously with the delivery of the written contract, must be considered as merged in the writing; and any such promise, made after the delivery of such contract, would be void, unless supported by some new consideration, other than that named in the writing.

What occurred between defendant Griel and Matthews, or between Griel and O'Connell, after the execution and delivery of the written assignment of Griel's interest in the land to the plaintiffs, was relevant to show the materiality of the fact that the original vendees from Moses were to execute joint

notes for the purchase money. If this was true, and Griel fraudulently concealed the fact from his vendees, Lomax and associates, the refusal of Matthews and O'Connell to unite with them in consummating the purchase, or to have anything further to do with the transaction, was a fact greatly prejudicial to the plaintiffs, and admissible in evidence to show a miscarriage of the whole enterprise by reason of the very fact whose existence and concealment is the sole basis of the alleged fraud. Under these views, the court erred in giving the general affirmative charge requested by the plaintiffs, and in admitting the evidence above pointed out as being irrelevant and illegal.

The demurrer, as shown by the judgment entry, is taken to the entire complaint as amended, and not to any particular count supposed to be defective. The complaint contained the common counts in the form prescribed by the Code, and for this reason there was no error in overruling the demurrer. Tabler v. Coal Co., 79 Ala. 377.

Reversed and remanded.

BAKER v. SCHEUSLER.

(Supreme Court of Alabama. January 15, 1889.)

COUNTIES-TAX COLLECTOR-BOND-LIEN ON REAL ESTATE.

The lien created by Code Ala. 1876, § 403, providing that "the bond of the tax collector shall operate from its execution as a lien in favor of the state and county on the property of such collector for the amount of any judgment which may be rendered against him in his official capacity for the state or county taxes," extends to property acquired by him after the execution of the bond. Following Lott v. Mobile Co., 79 Ala. 69.

Appeal from chancery court, Chilton county; S. K. MCSPADDEN, Chancellor. Bill filed by Moses Simmons against James A. Dudley, late tax collector of Chilton county, the sureties on his official bond, and several persons who had bought property from him, to subject the property of said Dudley, and the property of the sureties, so far as necessary, to the payment of a judgment which the county had recovered against them for an official default on his part, and which the complainant, one of the sureties on the bond, had paid, taking an assignment of the judgment to himself. The bond was dated October 11, 1875, and was conditional in the words of the statute. The judg. ment was for $1,327.04, and was rendered on the 22d October, 1878. On the death of the complainant pending the suit the cause was revived in the name of Adam Scheusler, as his administrator. The property sought to be subjected to the payment of complainant's claim consisted of several distinct parcels of lands in the town of Clanton. One of these parcels, containing several town lots, was Dudley's homestead at the time his bond was executed, and worth less than $2,000; and it was sold and conveyed by him, by deed dated January 15, 1876, on the recited consideration of $1,000, to Mrs. M. F. Callen. Another parcel, containing two town lots, was bought by him February 2, 1876, and was occupied as a homestead until June 22, 1877, when he sold and conveyed it to Mrs. Mary A. Baker. The conveyance to Mrs. Callen also embraced several lots which Dudley had bought after the execution of his bond. On final hearing, on pleadings and proof, the chancellor rendered a decree subjecting each of these parcels to sale in satisfaction of the amount ascertained to be due to the complainant. Mrs. Baker appeals.

Watts & Son and W. A. Collier, for appellant. W. S. Thorington, for appelee.

CLOPTON, J. The decisive question in this case is whether the lien declared by the statute for the amount of any judgment which may be rendered against the tax collector in his official capacity for the state or county taxes