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title of the property held by the Birmingham Land & Loan Company, -as to its nature or otherwise,-either at the time it was placed in the broker's hands for sale, or at the time of the agreement to purchase; nor was anything said as to the time when the title was to be made to him. The same day or the day after the agreement of sale, the said company turned their bond for title over to Painter, in order that he might have the same investigated. The only showing for title to the lot held by the Birmingham Land & Loan Company was a bond for title from the Elyton Land Company, the original vendor, which bond had been transferred to several intermediate transferees before it came into the possession of the Birmingham Land & Loan Company. There was shown to be a large amount of purchase money due upon the property. By the advice of counsel, Painter refused to consummate the purchase, on account of a defect in the title, stating at the same time that he 'was able to make the cash payment and complete the purchase." The appellee here, plaintiff below, brings this action against the appellant corporation to recover the commission which the defendant agreed to pay him; claiming that he, the plaintiff, has performed all the duties imposed on him by the agreement. The contention on the part of the defendant is that, as the sale was never consummated with Painter, the plaintiff is not entitled to recover; and, further, that, as the purchase money to be afterwards paid by Painter would have been sufficient to remove the incumbrance from the property, he, Painter, could have gotten a good title, after having paid the whole of the purchase money, until which time the defendant was not required to make a deed It is thus contended there was no such defect in the title as would justify Painter in repudiating the purchase, and hence, the proposed purchaser having refused to consummate the purchase without sufficient cause, the defendant is not indebted to plaintiff, as claimed by him. We do not think the position of the appellant tenable. By the terms of the agree ment the plaintiff had taken upon himself the duty of making sale for the defendant corporation at a specified price, upon specified terms, and upon an agreed commission. This duty was met and discharged, and the stipulated commissions for making such sale earned, when the plaintiff, in good faith, obtained a purchaser, who was able, willing, and ready to buy the said property upon the terms fixed by the defendant, and such purchaser was accepted by the proposed vendor. The office of a real-estate broker, who is employed to negotiate sales of property, is that he should find a purchaser able and willing to buy, and that he should be the efficient cause of bringing the minds of the proposed purchaser and would-be vendor together. When this is done, the office of the real-estate broker has been performed, and he has earned his commission. The rule is correctly laid down in Coleman's Ex'r v. Meade, 13 Bush, 358, as follows: "The broker undertakes to furnish a purchaser, and is bound to act in good faith in presenting a person as such, and, when one is presented, the employer is not bound to accept him or to pay the commissions, unless he is ready and able to perform the contract on his part according to the terms proposed; but if the principal accepts him, either upon the terms previously proposed, or upon modified terms then agreed upon, and a valid contract is entered into between the principal and the person presented by the broker, the commission is earned." Sayre v. Wilson, ante, 157; Henderson v. Vincent, 84 Ala. 99, 4 South. Rep. 180; Hamlin v. Schulte, 34 Minn. 534, 27 N. W. Rep. 301; Sibbald v. Iron Co., 83 N. Y. 378; Glentworth v. Luther, 21 Barb. 145; Parker v. Walker, 2 Pickle, 566, 8 S. W. Rep. 391; Walker v. Osgood, 98 Mass. 348; Kock v. Emmerling, 22 How. 69.

The fact that the sale of the property is never consummated does not weaken the force or application of the rule, provided the sale is not prevented by some fault or misrepresentation on the part of the broker, or on account of the inability of the proposed purchaser to comply with the terms of the sale. The broker has earned his commission when he has found a purchaser able

and willing to purchase at the stipulated price and terms, and who has been accepted by the owner of the property, although the sale is never completed, if the failure to complete the proposed sale is the consequence of an incumbrance upon the property, a defect in the title, or of some fault of the owner of the property to comply with the terms of the sale. Without some special stipulation to that effect, the broker does not warrant the title to the property; and if there is a defect therein, on account of which the sale is never completed, the broker is without fault, and should not be made to suffer thereby. He has fully performed his part of the transaction when he has secured a purchaser able and willing to buy. His office has ceased and his commission is earned. Knapp v. Wallace, 41 N. Y. 477; Gonzales v. Broad, 57 Cal. 224; Goodridge v. Holladay, 18 Bradw. 363; Doty v. Miller, 43 Barb. 529; Holly v. Gosling, 3 E. D. Smith, 262.

The implication, when property is placed in the hands of a real-estate broker for sale, is that the owner has a good title thereto, and that the purchaser can get the property unincumbered. When, therefore, a proposed purchaser agrees to buy,-nothing being said about the title, he has the right to believe he will get a good title. The inducement to buy is that the purchaser may acquire a good and indefeasible title. If, after investigation, a defect in the title is discovered, the agreed purchaser has the right to repudiate his contract of purchase; and this, too, without incurring any liability on account of the rescission. An agreement to buy and sell, such as the present, the purchaser not having been put in possession, is voidable, and can be rescinded for any good cause. There can be no better reason for the repudiation of a contract of purchase than a defect in the title. Flinn v. Barber, 64 Ala. 193; Cullum v. Bank, 4 Ala. 28. Under the views above expressed, there was no error in the court's giving the charge requested by the plaintiff, and in refusing to give those asked by the defendant. In addition to other objections that could be urged against the charges requested by defendant, they are open to the objection of being misleading, and to some extent abstract.

The judgment of the city court is affirmed.

MARSHALL v. MARSHALL.

(Supreme Court of Alabama. February 21, 1889.)

1. PARTITION-DECREE-EQUITY-JURISDICTION.

As incidental to a partition between heirs, a court of equity may adjust and equalize advancements, though jurisdiction of controversies as to advancements is conferred on the probate court.

2. EQUITY-PLEADING-MULTIFARIOUSNESS.

A bill seeking a partition of lands among the heirs, and incidentally thereto an allotment of dower, and sale of enough land to pay taxes due, and an adjustment and equalization of advancements, is not multifarious.

3. ABATEMENT-OTHER ACTION PENDING.

As the power of the probate court is inadequate to compensate for inequalities in partition, or to take an account of rents, or to provide for relieving the land of incumbrances, or to adjust and equalize advancements, the pendency of proceedings in it for partition is no objection to a subsequent bill in equity for the same purpose. 4. SAME-GROUND FOR DEMURRER.

The lands being situated in several counties, while the probate court has jurisdiction in one only, the pendency of such proceedings would not be good ground of demurrer to the bill in equity, as such demurrer goes to the whole bill. 5. PARTITION-EXECUTOR AS PARTY.

As the authority of the personal representative extends only to renting decedent's lands, and to obtaining an order of sale for payment of debts, he is not a necessary party to a partition between the heirs and an incidental adjustment of advancements, where there are no debts.

6. SAME-MISJOINDER OF HUSBAND-DEMURRER.

As the husband under the Alabama statutes has no interest in or control of the statutory separate estate of the wife, and as by Code Ala. § 2347, she must sue and be sued alone in all cases involving such estate, a demurrer based on the misjoinder of the husbands of the female heirs should be sustained.

Appeal from chancery court, Lee county; S. K. MCSPADDEN, Judge. Bill by James F. Marshall and others against Samuel Marshall and others. Defendants appeal.

J. M. & E. M. Oliver, for appellants. Richardson & Steiner, for appellees.

CLOPTON, J. The appeal is taken from a decree overruling a demurrer to a bill. Assuming the truth of its allegations, the facts are: William B. Marshall died intestate in January, 1874, being at the time of his death a resident of Talbot county, Ga. He left an estate in Georgia, and owned, at the time of his death, a considerable quantity of land in Alabama, situated in several different counties. He left surviving him a widow and children and grandchildren. During his life-time he made unequal advancements to his children. Letters of administration on his estate were granted to James F. Marshall, one of his sons, by the court of ordinary of Talbot county. This administration has been finally settled, and the administrator discharged. On the settlement the assets, amounting to over $13,000, were distributed between the widow and the distributees, who file this bill. James F. Marshall was also appointed administrator of the estate in Alabama by the probate court of Butler county, in which some of the lands are located. His letters were afterwards revoked on the ground of non-residence, and another person was appointed administrator de bonis non, whose letters also were subsequently revoked, and no representative has been since appointed. In November, 1887, some of the heirs made application to the probate court of Butler county for an order to sell, for partition, the lands situated in that county. After legal notice to the parties, the court, in January, 1888, made an order of sale, and appointed commissioners to make the sale. The present bill was filed April 4, 1888, by appellees, for a partition of the lands among the heirs as tenants in common, and, as incidental and essential thereto, seeks to have the widow's dower allotted, and a sale of enough of the lands to pay the taxes due thereon, and to adjust and equalize the advancements.

In the absence of a statute, a court of equity has no power to effect a partition of lands between adult tenants in common, without their consent, by decreeing the sale because the lands cannot be equitably partitioned among them, or for any other reason. Lyon v. Powell, 78 Ala. 357. The jurisdiction to order a sale of lands for partition among adults was conferred, prior to the enactment of the present statute, upon the probate court. By section 3262, Code 1886, concurrent jurisdiction with the probate court is conferred on the chancery court, "to divide or partition any property, real, personal, or mixed, between joint owners or tenants in common." Notwithstanding the chancery court had no authority to sell the lands of adults, the difficulty of making partition was no ground for refusing relief. When exact or fair division was impracticable on a bill for partition merely, the court could compensate for any inequality by a pecuniary compensation charged on the land by way of rent or servitude. Also the court could direct an account of rents and profits received by one of the joint owners, and award compensation to a joint owner for improvements made by him, either by assigning to him that part of the land on which the improvements were located, or by setting off their value against the rents and profits. Horton v. Sledge, 29 Ala. 498; Ormond v. Martin, 37 Ala. 598. The court, in such case, acted on the familiar principle that, having acquired jurisdiction of the subject-matter on a special and original ground of equity, it will employ its powers to adjust the equities between the parties, growing out of their ownership and relation to the prop

erty, and the connection of their interests with those of their co-tenants, and with the general right or equity of the complainant.

It is insisted, however, that the jurisdiction of controversies as to advancements is conferred by the statutes on the probate court. This is true, but it does not follow necessarily that the power of the court of equity to equalize advancements, when essential to complete relief and justice, is destroyed when the court has taken jurisdiction of the case under some recognized head of original jurisdiction. Though the statutes confer on the probate court cognizance of administrations, and the settlement of estates, with power to adjudicate the rights and interests of heirs and distributees, they do not operate to oust the original jurisdiction of courts of equity. When a court of equity takes jurisdiction of an administration, and it becomes necessary to distribute the assets, real and personal, among those entitled, it may decree an account of advancements for the purpose of complete and equal distribution. Key v. Jones, 52 Ala. 238. On the same principle, when the court takes jurisdiction for partition of lands, which the tenants in common acquired by inheritance from a common ancestor, who has made advancements to some of them, having the power to decree a sale for the purpose of partition, it may, before decreeing partition, require the tenants in common to bring in their advancements, and take them as portions of their shares. Pigg v. Carroll, 89 Ill. 205; Freem. Co-Tenancy, §§ 505, 506. The general equity of the bill rests on sound principle.

In Tindal v. Drake, 51 Ala. 574, a bill for partition of lands, also seeking the removal of a trustee, and an account for the rents and profits while they were in the possession of a purchaser from the trustee, was held not to be multifarious. The averments of the bill in this case show that the interests of no defendant are entirely separate and distinct from those of the co-defendants. Their interests are in common, growing out of the common ownership of the lands, and their relation as heirs of a common ancestor to the subjectmatter of the suit, and are connected with the general equity of complainants. The objection of multifariousness cannot prevail. Bolman v. Lohman, 74 Ala. 507; Lott v. Mobile Co., 79 Ala. 69.

The next ground of demurrer is based on the acquisition of jurisdiction by the probate court of Butler county by the petition for an order to sell the lands in that county for partition, and its exercise until an order of sale granted. The bill shows that there were lands situated in several counties. The probate court of Butler county acquired jurisdiction only as to the lands in that county. If conceded that, under the circumstances of the case, the chancery court should not interfere with the continued exercise of the jurisdiction, it would not operate to dismiss the entire bill. The demurrer goes to the whole bill, and for this reason, if for no other, was properly overruled. Burke v. Roper, 79 Ala. 138. The jurisdiction of the probate and the chancery courts being concurrent, the general rule is that, if the probate court first obtained jurisdiction, it, eo instanti, becomes exclusive. In such case, the chancery court should not interfere with its continued exercise, unless the circumstances are such as to render the power of the probate court inadequate to do complete justice. The probate court has no power to compensate for inequalities in the partition, nor to take an account of rents, nor to provide for relieving the lands of incumbrances, nor to adjust and equalize the advancements among the tenants in common, when the lands descended from a common ancestor. Only the powers of a court of equity are ample to accomplish these purposes. These facts and exigencies call for its interference, in order that complete justice may be done. Wilkinson v. Stuart, 74 Ala. 198. The bill alleges that the lands constitute the entire estate in Alabama; that the estate in Georgia has been fully administered, settled, and distributed; and that no debts are due by decedent. On the death of the ancestor, the title to the lands descended immediately to his heirs, who have the right of immediate posses

sion, subject only to the statutory authority of the personal representative to rent them, and to obtain a judicial order of sale for the payment of debts or for distribution. As there are no debts of the estate, and as the bill seeks partition, and incidentally an adjustment of the advancements in which an administrator has no interest, and there is no occasion that the estate should be represented, the personal representative of the deceased ancestor is not a necessary party. Tindal v. Drake, supra. The statutes defining the rights and liabilities of husband and wife abrogate his trusteeship, and divest him of all right, interest, and title to the property, growing out of his relation of husband, and deprive him of authority to control and manage the same, except by way of restraint upon its alienation. Rooney v. Michael, 84 Ala. 585, 4 South. Rep. 421. Having no interest and no control of the statutory separate estate of his wife, the husband is not a necessary party to a bill relating to such separate estate. The spirit and policy of the statute are that the wife must sue and be sued alone in all cases, either at law or in equity, involving her statutory separate estate. Code 1886, § 2347; Ramage v. Towles, 86 Ala., ante, 342. The cause of demurrer, based on the misjoinder of the husbands of the female heirs, was well taken. Ramage v. Towles, 86 Ala., ante, 342. The decree of the chancellor is reversed, so far as it overrules the last-mentioned cause of demurrer, and affirmed in all other respects. Affirmed and reversed.

SMITH V. STATE.

(Supreme Court of Alabama. February 21, 1889.)

1. HOMICIDE-ASSAULT WITH INTENT TO KILL-INSTRUCTIONS.

In a trial for assault with intent to kill, one of the charges asked by defendant was that, to reduce the offense to an assault and battery, it is not necessary that defendant, at the time he struck the blow, should have been unconscious of what he was doing; but, if there was sufficient provocation to excite sudden passion, and defendant acted under such passion, then the presumption is that passion made him regardless of his act, and, if the jury believe this, they may find him guilty of an assault and battery merely. Held, that the charge should have been given. 2. SAME-INSTRUCTIONS-SUDDEN PROVOCATION.

The court charged that the burden was on defendant to show that he was justified, or that he acted in self-defense. Held, that the charge asserted the proper rule as to the burden of proof; and, if defendant thought that it did not sufficiently charge as to a blow given under provocation and sudden passion, he should have requested a further instruction.1

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge. Giles Smith was indicted for an assault with intent to murder, was convicted, and sentenced to the penitentiary. On the trial he reserved exceptions to several charges given, and to the refusal of several charges asked by him. One of the charges asked and refused was in the following words: “To reduce the offense to an assault and battery, it is not necessary that the defendant, at the time he struck the blow, should have been unconscious of what he was doing; but, if there was a sufficient provocation to excite sudden passion, and defendant acted under such passion, then the presumption is that passion disturbed the sway of reason, and made him regardless of his act, and, if the jury believe this from the evidence, they may find him guilty of an assault and battery merely." For opinion in former appeal, see 3 South. Rep. 551.

Parks & Son, for appellant. T. N. McClellan, Atty, Gen., for the State.

STONE, C. J. The conflicting testimony in this record places the case in very different categories. That of the prosecutor tends to show he was

On the general subject of the burden of proof in homicide cases, see Cleveland v. State, (Ala.) ante, 426, and note.

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