Geo. P. Harrison, Jr., for appellant. J. M. Chilton, for appellee.

STONE, C. J. The intestate of appellee was killed by appellant at a point on its road which was not in a city or town nor at a public crossing. In Railroad Co. v. Womack, 84 Ala. 149, 4 South. Rep. 618, the entire court held that when a trespasser complains of an injury so suffered the burden is on the plaintiff to show want of diligence on the part of those in charge of the train. In the same case the entire court held that the fact that the person injured was intoxicated at the time does not relieve him of the charge of contributory negligence, when it was not known to the persons in charge of the train. In these propositions the entire court concurred. In the same case a majority of the court held, and thus made it the law of this court, that, except at public @rossings, and within the limits of cities or towns, a railroad company is under no obligation to keep a special lookout for intruders or trespassers on its track, and is only bound to reasonable diligence after they are, or ought to be, discovered.

The result of the rulings in Womack's Case, supra, is that, as to the deceased, the railroad company was under no obligation to maintain a lookout; that his intoxication imposed on the company no increase of diligence, unless the officers in charge of the train had knowledge of it; that in the absence of such knowledge the same rule applies to him as to a sober man; that the measure of diligence the corporation owed him is what the books call ordinary diligence; and that the burden of proving that it had not bestowed such diligence was on the plaintiff.

In Beach, Contrib. Neg. § 146, is the following language: "Drunkenness is a wholly self-imposed disability, and in consequence is not to be regarded with that kindness and indulgence which we instinctively concede to blindness or deafness, or any other physical infirmity. Trespassers go at their peril. That is settled law. Much more is it just to hold that they make themselves drunk at their peril. Disabilities, moreover, of any kind are to be a shield and never a sword. It would be a strange rule of law that regarded a certain course of conduct negligent and blameworthy upon the part of a sober man, but that held the same conduct on the part of the same man when intoxicated venial and excusable. Drunkenness will never excuse one for a failure to exercise the measure of care and prudence which is due from a sober man under the same circumstances." This is strong language, but it is sound logic and sound law. It would be monstrous to hold that a railroad corporation owes a higher duty to a drunken trespasser than to a sober one, when it is without the means of determining whether the intruder is sober or drunk. The following authorities sustain the text of Mr. Beach: 4 Amer. & Eng. Cyclop. Law,.78, 79; Richardson v. Railroad Co., 8 Rich. Law, 120; Herring v. Railroad Co., 10 Ired. 402; Railroad Co. v. Hankerson, 61 Ga. 114; McClelland v. Railroad Co., 94 Ind. 276; Railroad Co. v. Bell, 70 Ill. 102; Whalen v. Railway Co., 60 Mo. 323; Railway Co. v. Pankhurst, 36 Ark. 371; Denman v. Railroad Co., 26 Minn. 357, 4 N. W. Rep. 605; Kean v. Railroad Co., 19 Amer. & Eng. R. Cas. 321; Mulherrin v. Railroad Co., 81 Pa. St. 366; Railroad Co. v. Dougherty, 36 Md. 366; Railroad Co. v. Miller, 25 Mich. 274; Yarnall v. Railway Co., 75 Mo. 575; Railway Co. v. Sympkins, 54 Tex. 615.

The substance of the proof bearing on the condition and position of the deceased at the time of the injury may be summarized as follows: He was quite drunk, lying outside of the track, and at right angles to it, his head between the jutting ends of two cross-ties in a depression, and invisible until you came near upon it. A small portion of his body, commencing with his chest and extending down, was slightly visible to an approaching engineer at his post, but no part was visible which approached nearer than 16 or 18 inches to the rail. Until he raised his head, as after shown, it could not be determined

from what was visible that it was a human being. When the train was so near to him that it was impossible to stop it before striking him, he raised his head, and thus disclosed for the first time that it was a human being. If he had not raised his head, the train would have passed without harming him. The testimony in this case is without material conflict. There is not a semblance of proof tending to show negligence in the railroad's officials, while it is shown that plaintiff's intestate was guilty of the grossest negligence. So reckless was his conduct that, if he had been sober, his death could have been properly characterized as intentional suicide; and, inasmuch as no indulgence can be claimed by reason of his drunkenness, unless his condition was known, of which there is no pretense of proof, the rights of the present plaintiff must be tested by the same rules as if intestate had been sober. Tested by that rule, there is not enough shown to authorize its submission to the jury on an inquiry of negligence vel non. The plaintiff's case, viewed in the most favorable light, is insufficient to uphold a verdict in her favor should the jury so find. To justify a recovery in a case like the present it is not enough that the railroad company should be shown to have been negligent. The rule requires more than this. When the party complaining was himself guilty of negligence which contributed proximately to the injury, to entitle him to a verdict he must show that the conduct of the defendant was intentional, wanton, or reckless. 3 Brick. Dig. 673, §§ 27, 32.

There are two obvious reasons why the general charge should have been given in favor of the defendant: First. The fourth plea of defendant set up certain alleged facts in bar of the action. Plaintiff, without questioning its legal sufficiency, took issue upon it. The proof fully sustained the averments of this plea, and hence was a defense to the action. In the second place the proof fails to make a case entitling plaintiff to a recovery, and for that reason the general charge should have been given.

We need not notice other rulings as what we have said will be sufficient. guide on another trial.

Reversed and remanded.

VINCENT v. WALKER et al.

(Supreme Court of Alabama. February 18, 1889.)

DEED-MARRIED WOMAN-CONDITIONAL SALE.

A married woman executed a deed of her statutory separate estate, absolute on its face, and the grantee agreed that the grantor might "redeem" on paying the amount of the consideration and interest, and that thereupon he would "reconvey." The grantee had been advised that a mortgage on such estate would be void, but that a conveyance with a reservation of the right to repurchase would be good, and declined to lend money to the grantor on a mortgage. On a bill to cancel the conveyance as a mortgage, and therefore void, held, that the transaction was a conditional sale, and that such construction of it was not affected by an addendum to the agreement, written by a third person without the grantee's knowledge or special authority, reciting the amount the grantor "owes."

Appeal from chancery court, Madison county; THOMAS COBBS, Judge. Bill by Louisa J. Vincent against Elijah F. Walker and others. Complainant appeals.

John D. Brandon, for appellant. R. C. Brickell and L. Cooper, for appellees.

SOMERVILLE, J. The purpose of the bill filed by the complainant, Mrs. Vincent, a married woman, is to have a deed executed by her on April 7, 1886, to the defendant Walker, and absolute on its face, declared a mortgage, and thereupon to cancel such conveyance as void, on the ground that it was given on her statutory separate estate, and for this reason was a nullity. v.5so.no.20-30

In considering the case we will regard the agreement executed by Walker, and bearing date April 12, 1886, as part and parcel of the deed of conveyance, in accordance with the contention of the appellant's counsel. This agreement recites the fact that the grantee, Walker, had paid $2,000 in cash for the land, and it confers on the grantors, Vincent and wife, the right to "redeem" the same by paying therefor the same sum, with interest to the date of redemption, whereupon he agrees to "reconvey" the land to Mrs. Vincent. There is a brief addendum to the instrument to which we shall hereafter advert.

The following propositions, relating to this subject, are settled by our past decisions:

(1) While a married woman could not, prior to the time the present married woman's law went into effect, (February 28, 1887,) mortgage her statutory separate estate, such attempted mortgage being an absolute nullity as to her, she could lawfully make a deed of bargain and sale of such estate, with the privilege of repurchasing retained by her, in the nature of a conditional sale. Peeples v. Stolla, 57 Ala. 53.

(2) One of the distinguishing tests by which to determine whether an instrument is a mortgage, or a sale with the privilege of repurchasing, is the existence or non-existence of a debt to the secured. If there be no debt due from the grantor to the grantee, there can be no mortgage. The idea of a mortgage without a debt to be secured by it is a legal myth in our system of jurisprudence. Douglass v. Moody, 80 Ála. 61; Mitchell v. Wellman, Id. 16; Peeples v. Stolla, supra.

(3) The reserving or granting the right "to redeem" lands to a grantor, by paying a certain sum to the grantee by a fixed day, cannot convert an instrument, otherwise purporting to be a conditional sale, into a mortgage, there being no debt or binding obligation on the part of the grantor to redeem. Haynie v. Robertson, 58 Ala. 37; Logwood v. Hussey, 60 Ala. 417.

(4) To convert an instrument, on its face a conditional sale, into a mortgage, the intention and understanding of both parties to such instrument must be shown to have concurred that it should so operate. The fact, however, clearly proved, that the grantor alone intended and considered the transaction a mortgage is insufficient to make it a mortgage. West v. Hendrix, 28 Ala. 226; Douglass v. Moody, supra.

(5) Inadequacy of price or consideration is not sufficient of itself to convert an instrument, purporting to be a conditional sale, into a mortgage or security for the repayment of money, although it may be an element of fact to be considered in determining the question, where there is a debt in existence to be secured. West v. Hendrix, 28 Ala. 226; Rapier v. Paper Co., 77 Ala. 126.

(6) An instrument cannot operate, at one and the same time, as a mortgage and a conditional sale; these two classes of conveyance being chiefly distinguished by the existence of a debt in the former and the non-existence in the latter. Where, however, the repugnancy of its provisions and the accompanying evidence renders its character doubtful, it will accordingly be construed a mortgage rather than a conditional sale,—at least where such construction will operate equitably by securing to the grantee or creditor his debt with interest, and enable the grantor or debtor to effect a repurchase of his land. Rapier v. Paper Co., supra; Crews v. Threadgill, 35 Ala. 334.

(7) But where the instrument, if construed to be a mortgage, will become void, and operate to promote the injustice by losing the grantee his money paid for the land, and by restoring to the grantor property without an honest return of the money actually received by him, and for the security of which such property was attempted to be conveyed, the inclination of a court of equity, in case of doubt, will be to regard the transaction as a conditional sale, and not as a mortgage. That construction will rather be adopted, on well

settled principles, which will uphold the instrument, and not destroy it; which will work equity between the parties, and not injustice.

The application of these rules fully sustains the conclusion of the chancellor, that the transaction between Mrs. Vincent and the defendant Walker was not a mortgage, but a conditional sale, or sale reserving the right of repurchasing to the grantor. The two papers relating to the matter, the deed of April 7, 1886, and the agreement of April 12, 1886,-show this on their face, and the burden of proving the contrary is cast on the appellant. The testimony, in our judgment, satisfactorily shows that Walker expressly and positively declined to lend money to the complainant on mortgage, for the reason that she was prohibited by law from giving such security on her statutory separate estate. He was advised by counsel that such a security would be absolutely void, but that Mrs. Vincent might make a sale of the property, reserving the right to repurchase, as appears to have been done on the face of the paper. It is clear that Walker's intention accorded with the intention imported by the deed and agreement, which stamps the transaction as a conditional sale. That the intention of Mrs. Vincent may have been to borrow money, or that her belief was that she had given a mortgage instead of a deed, is entirely immaterial. There can be no mortgage without the concurring intention of both contracting parties-First, to create a debt; and, secondly, to secure the debt by some form of conveyance. In this case there is no debt, and hence there can be no mortgage.

The addendum to the agreement of April 12, 1886, does not overturn this presumption. It was made subsequently to the date of the transaction, having been written by one Gurley, in the absence of Walker, and without the knowledge or special authority of his principal. The recital as to what Mrs. Vincent "owes" was an inapt expression, contrary to the fact that she owed nothing whatever. It had reference only to what she would owe in the event of undertaking to exercise the privilege of repurchasing the land, under the agreement creating the conditional sale.

This conclusion results in the affirmance of the chancellor's decree, which is accordingly affirmed.

PARSONS v. MARTIN.

(Supreme Court of Alabama. February 19, 1889.)

VENDOR ANd Vendee-Lien of Vendor.

Where one of two notes taken by a vendor for the price of land on which they are a lien is assigned by him, and is afterwards paid by a subsequent vendee of the land as part of the price of his purchase, such subsequent vendee has a lien to the extent of the note so paid superior to that of the original vendor under the note retained by him.

Appeal from chancery court, Coosa county; S. K. MCSPADDEN, Judge.

Bill by H. C. Parsons against E. R. Martin to have the description of land contained in a note taken by complainant for part of the price of land corrected, and also to have the note, or a judgment on it, declared a lien on the land intended to be described.

In November, 1880, complainant conveyed land to Jacob Nelson, who gave complainant two promissory notes for the price, payable in one and two years. Complainant transferred one of the notes to McDonald before maturity for value. Defendant purchased the land from Nelson, and, as part of the price, paid the note held by McDonald. The notes by mistake described the lands as lying in section 25, instead of in section 35. The note retained by complainant was never paid, but he has obtained a judgment on it. The judgment has not been satisfied. Complainant prays that the lien of his note be declared superior to that created by the other note. The chancellor decreed that defendant had a prior lien. Complainant appeals.

Felix L. Smith, for appellant. Watts & Son, for appellee.

SOMERVILLE, J. The two notes executed to the complainant, Parsons, on November 25, 1880, having been given by the vendee Nelson for the purchase money of the land described in the bill, were unquestionably a lien on the land in favor of the vendor. The assignment of one of these notes to McDonald operated to create a priority of lien in his favor to the extent of the note so assigned, which would be entitled to a preference of payment as a charge on the land over the other note retained by the complainant. Insurance Co. v. Hall, 58 Ala. 1; White v. King, 53 Ala. 162.

The defendant, Martin, having purchased the land from Nelson, and, as a part of the consideration of the purchase, having taken up the note in McDonald's hands, clearly was entitled to be subrogated to his rights as the holder of a prior lien, as against the complainant, Parsons.

There was no error in the decree of the chancellor holding that the defendant had a prior lien to the extent of the superior incumbrance which he had discharged by payment.

Affirmed.

MCKENZIE et al. v. WIMBERLY et al.

(Supreme Court of Alabama. February 19, 1889.)

1. NEGOTIABLE INSTRUMENTS-SUIT ON NOTE-DEFENSES.

One who has given a note in part payment of certain timber cannot, after he has received all that he is entitled to under the contract, defend against the note on the ground that such timber at the time of the sale was on land belonging to the wife of the vendor, and that he had no right to sell it.

2. CONTRACTS-INTERPRETATION-QUESTION FOR JURY.

In an action on the note, the vendee contended that, owing to the fault of the vendor, he had failed to receive a portion of the timber which he had purchased equal to the amount of the note, while the vendor testified that the vendee had received all that he was entitled to under the contract. The contract described the timber sold as "timber 12 inches heart and up," and it was in dispute as to what was meant by this phrase, conflicting testimony being introduced on the point. Held, that the question as to the proper rule for the measurement of the timber should have gone to the jury.

Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge. Suit by W. W. Wimberly and another against McKenzie & Morton, on a promissory note. McKenzie & Morton purchased the pine timber upon a certain tract of land from one W. J. Nicholson, and paid a part of the purchase money in cash, and gave their promissory note for the balance. This note was transferred by the said Nicholson to the plaintiffs, and is the foundation of the present suit. The defendants pleaded the general issue and the failure of consideration.

Upon the evidence, the defendants asked the following charges to be given to the jury, which were in writing: (1) "That if they believe from the evidence that W. J. Nicholson made the contract in evidence, and it was for the sale of timber on his wife's land, then such contract is void, and the note given is without consideration, and your verdict should be for the defendant." (2) "That Nicholson could not make a valid sale of the timber on his wife's land. And if this note was given in part payment of timber sold by the husband on the wife's land, and the husband transferred it without the joining of the wife in such conveyance, the plaintiffs cannot recover upon the note sued in this case." (3) "If the jury believe from the evidence that the note sued on was given for timber trees on the pine land mentioned in the contract, and for nothing else, and the ordinary and usual mode of measurement in the purchase of trees standing on the land is the measurement at the stump, and that there was more than $48.90 [the amount of the note sued on] worth