has been repeatedly affirmed that when land is described in a bond or deed by well-defined boundaries, such as by its designation according to the government survey, or by natural or artificial metes and bounds, or courses and distances, open to observation, and not subject to mistake, a statement of quantity following the description is regarded a part of the description, and not of the essence of the contract. By such sale both parties take upon themselves the risk as to quantity. The purchaser is entitled to all the land included in the tract specifically described, though greater than the quantity stated, and the vendor is not liable if there be a deficiency. In such case, in the absence of fraud, or gross and palpable mistake, or an omission to truly express the contract, parol proof, varying or contradicting the terms of the conveyance, is inadmissible, even in equity. Wright v. Wright, 34 Ala. 194; Carter v. Beck, 40 Ala. 599; Rogers v. Peebles, 72 Ala. 529; Hess v. Cheney, 83 Ala. 251, 3 South Rep. 791.

But this rule has no application to contracts of the second class. A different rule governs when it is apparent from the conveyance that the land is not described by definite and certain boundaries, which furnish the standard of quantity; and the representation of the number of acres is an essential ingredient of the contract, regulating the aggregate sum to be paid. In such case, if there be a material and substantial variance, equity will place the parties in the same relative condition in which they would have stood had the real quantity been known at the time of the bargain. Winston v. Browning, 61 Ala. 80; Harrison v. Talbot, 2 Dana, 258. Whether the statement of the quantity in a bond or deed shall be regarded as descriptive, or of the essence of the contract, largely depends upon the manner of its use, and its connection with other descriptive parts.

The foregoing principles are of easy application to the sale shown by the bond in question. There is an evident misdescription as to the numbers of the sections, and in other respects. But this is immaterial, as it does not and cannot affect the interpretation of the bond as to the matter under consideration. The land sold consists of two parcels, as to one of which there is no controversy, We shall confine our consideration to the parcel in which it is alleged the deficiency occurs. As to this, the language of the descriptive part of the bond is: "All the land lying on the north side of Denny's ferry and Rock Mills road, and four acres on the south side of said road, containing in all eighty-two acres, more or less; said land off of the N. W. of the S. of sect. (13,) and a part off of the west end of S. of sect. (12,) in town. (24,) range (25.)" It is apparent that the contract is not a sale of a specific tract, described by definite and certain boundaries, to which the representation of the number of acres can be superadded as a part of the description. By the express terms of the bond, the vendor sold and the defendant bought 82 acres, more or less, 4 of them lying south, and the balance north, of the public road. It constitutes parts of subdivisions of sections, the area of which includes more land than the quantity sold, and no data furnished from which to ascertain the particular part of the subdivisions. The boundary of neither side is given, and the only means of determining the quantity sold is the representations contained in the bond.

Stress, however, is laid on the words ". 'more or less," as qualifying the representation of quantity, and showing that the parties did not regard it as of the essence of the contract. In Dozier v. Duffee, 1 Ala. 320, it is said: "The words more or less' though not decisive, of themselves, to show that there was no stipulation by the vendor as to the quantity, yet, taken in connection with the rest of the deed, become very expressive of its true meaning." And in Frederick v. Youngblood, 19 Ala. 680, it is said: "We think that the obvious common-sense meaning of the words in the deed, be the same more or less,' is that the parties should run the risk of gain or loss, and, if the quantity prove greater or less than the quantity sold, the parties should abide by

their bargain." In each of these cases the land was described by its designation according to the government surveys. Of the effect and meaning of such or equivalent words, different courts have entertained different views. We have no hesitation in saying that when the land is described by metes and bounds, as constituting a specific tract, such description preceding a statement of the quantity, the words "more or less," or equivalent words, qualify and restrain the representation of quantity, and show that the parties did not regard the number of acres stated as an essential ingredient of the contract, but merely descriptive. When, however, the sale is by the quantity, and not as a specific tract, the words "more or less" do not qualify and restrain to such an extent. They are ordinarily understood and intended to meet any small variance in the estimated and represented quantity, and restrain the representation "to a reasonable or usual allowance for small errors in surveys, or for variations in instruments," or as estimated by the parties. And, if the deficiency be relatively large, equity will allow the purchaser a corresponding abatement of the purchase money. Terrell v. Kirksey, 14 Ala. 209; Couse v. Boyles, 4 N. J. Eq. 214; Quesnel v. Woodlief, 2 Hen. & M. 173, note.

The bond showing only a sale of a specific quantity of land, it follows from the foregoing principles that the words, "containing in all eighty-two acres, more or less, are an averment or representation as to quantity, qualified and restrained as we have above stated. Such being the nature of the sale, and of the bond, parol evidence that the sale was in fact by the acre, and that the parties adopted this mode to fix the aggregate price, does not vary or contradict its written terms. It only tends to prove either fraud or gross and palpable mistake. Both the bond and the parol proof show that by the representation, and in the contemplation of the parties, the quantity of the whole land sold was about 107 acres. The evidence tends to show that there was a deficiency of about 25 acres. We will not say that actual fraud is proved; for it seems that the vendor himself purchased the land as containing the same number of acres, and therefore may have made the representation in good faith. The only living witness who is competent, and is unimpeached, testifies that the sale was by the acre, and that the vendor represented that there were 105 or 108 acres. The defendant had a right to rely, and, the reasonable inference is, did rely, on this representation. A deficiency so relatively large shows a gross and palpable mistake; so gross and palpable that equity should compensate the purchaser. Sugd. Vend. 382. We are not satisfied with the survey that was made, showing the extent of the deficiency, and consequently will remand the cause, that the chancery court may, by reference to the register, satisfactorily ascertain the amount which should be deducted, and cause, if deemed necessary, another survey, in order that a correct result may be obtained. Reversed and remanded.

BRUNSON v. MORGAN.

(Supreme Court of Alabama. February 26, 1889.)

EJECTMENT-TITLE TO MAINTAIN-CONVEYANCE OF LAND IN POSSESSION OF ANOTHER. A decree in chancery that defendant's possession of the locus in quo is not adverse to plaintiff's title estops him to deny such title; and hence à subsequent conveyance of the land by plaintiff is valid, though defendant is still in possession, and defeats plaintiff's right to maintain ejectment.

Appeal from circuit court, Coffee county; J. M. CARMICHAEL, Judge. Action in the nature of ejectment, brought by Sallie Morgan against Matthew Brunson. Verdict and judgment for plaintiff, and defendant appeals. W. D. Roberts and J. D. Gardner, for appellant. H. L. Martin, for appellee.

CLOPTON, J. In order to establish her right of recovery, the plaintiff introduced and read in evidence a transcript of the proceedings and decree in a suit in chancery, brought by her and Silas Brunson against C. S. Lee and Matthew Brunson, the defendant in the present action. In the bill in equity the complainants claimed title under a mortgage executed in March, 1871, by M. Brunson, Sr., and M. & S. Brunson, of which firm defendant was a member. The mortgage was made to M. H. Amerine, as trustee, to secure a debt due by the firm to Carey & Hudson. The name of the firm was signed to the mortgage by S. Brunson. The property was sold under the mortgage, and purchased by the beneficiaries, who afterwards sold and conveyed it to Stoudenmire & Co., who sold and conveyed to Silas Brunson, who sold and conveyed it to Sallie Morgan. The purpose of the bill was to divest the title to the property embraced in the mortgage, which included the land sued for in the present suit, out of Matthew Brunson and C. S. Lee. On July 12, 1887, the chancery court rendered a decree divesting whatever title and interest was owned and held by the defendants, and vested the same in Sallie Morgan. It may be conceded that the decree has the effect and operation of a conveyance, and is evidence of title upon which the plaintiff may maintain ejectment against the defendants in the chancery suit, or either of them. Moore v. Helms, 74 Ala. 368. The present suit was commenced August 25, 1887. No controversy seems to have been raised as to the sufficiency of the decree to support the action. A special plea filed by the defendant sets up as a defense that the plaintiff sold and conveyed, February 15, 1888, all her right, title, and interest in the land to Silas Brunson, and in support of the plea read in evidence a deed executed by her and her husband on that day. The plaintiff, in order to avoid the effect of the deed, then proved by the defendant that he had been in the exclusive use and occupancy of the lands for many years, openly claiming and cultivating them continuously as his own against the plaintiff and all others, and was on the day the deed was executed to Silas Brunson, and still is, so claiming and cultivating them, and has in no way recognized the plaintiff's right.

The general rule is that in an action of ejectment the plaintiff must have title at the time of both the commencement of the action and the final trial. Though she may have title when the plaintiff commenced the action, she cannot recover if her title has terminated during its pendency, either by voluntary conveyance, or by its own limitation, or otherwise. It is also well settled that a sale and conveyance of land which is in the adverse possession of a third person holding under a claim of right, do not vest in the grantee a right to maintain an action in his own name for its recovery from such third person. Such conveyance being valid as between the parties, the grantor may, after its execution, maintain an action of ejectment in his name, the recovery inuring to the benefit of the grantee. Davis v. Curry, 85 Ala. 133, 4 South. Rep. 734; Scranton v. Ballard, 64 Ala. 402. It is, however, not enough to avoid a deed that the land is in the possession of another, though exercising acts of ownership; it must be adverse. Humes v. Bernstein, 72 Ala. 546; Williams v. Hatch, 38 Ala. 338. The possession of a mere trespasser will not operate to avoid the deed of the true owner. Nor does the rule apply to a sale made by a trustee, under a deed of trust, at a time when the grantor in the deed of trust is in possession of the premises. Neither does the possession of a vendee under an executory contract of purchase, the purchase money not having been paid, operate to avoid a conveyance made by his vendor. And where land has been sold under an execution, the possession of the debtor is not adverse to that of the purchaser at the execution sale, and a conveyance made by him while the debtor is in possession is valid. Herbert v. Hanrick, 16 Ala. 581; Wiswall v. Ross, 4 Port. (Ala.) 321; Cook v. Travis, 20 N. Y. 400; Mitchell v. Lipe, 8 Yerg. 179. Whether a sale and conveyance operate to vest the grantee with the right to maintain an action in his own name for the

recovery of land depends upon the fact whether the person in possession asserts a title hostile to that of the grantor, or in subordination to it; or also whether he is estopped from denying the title of the grantor, and from setting up adverse possession, and is bound to surrender it without questioning his title. Castleman v. Combs, 7 T. B. Mon. 273.

In the suit in equity the defendant set up his adverse possession against the right of complainant to have the title divested out of him. The chancellor held that the defendant's (Brunson's) possession was not adverse to the mortgagee. The decree is conclusive on the defendant as to the title of the plaintiff, and the adverse character of his possession. He is thereby estopped from denying the plaintiff's title, and was bound by the decree to surrender to her possession of the land without questioning it. The chancellor could well have ordered in the decree that the plaintiff, in whom he had vested the title of the defendant, be put in possession, without leaving her to resort to an action at law. Under these circumstances, such being the character of defendant's possession, the conveyance of plaintiff to Silas Brunson, pending the present action, terminated her title, and vested in the grantee a right to maintain an action in his own name against the defendant for the recovery of the land. If it be said that the possession of the defendant became adverse subsequent to the rendition of the decree, this question should have been submitted to the jury. The court erred in giving the affirmative charge in favor of plaintiff.

Reversed and remanded.

SHARP et al. v. HALL.

(Supreme Court of Alabama. February 26, 1889.)

1. WILLS-VALIDITY AND REQUISITES-WHAT CONSTITUTES.

An instrument conveying property, but showing on its face that the use thereof is reserved during the maker's life-time, may be either a deed or will, the class to which it belongs being determinable upon all the circumstances surrounding the

parties and attending its execution. ་

2. SAME EVIDENCE.

Upon that question, the facts that the maker of the instrument was without near relatives, and was attached to the donee, who was of her family; that she directed the scrivener to write a will, and executed the instrument drawn by him, knowing its contents, and had it attested, and did not deliver it, but placed it in an envelope with an indorsement that it was not to be opened during her life,—are competent evidence.

3. SAME.

A clause in such an instrument, stating that it is intended in part to dispense with the necessity of administration on the maker's estate, may be considered in determining whether the maker intended it to take effect during her life.

4. SAME.

The fact that the maker did not dispose of all her property is likewise admissible on the question of whether she intended the instrument as a will. 5. WITNESS-CREDIBILITY-IMPEACHMENT.

Where the scrivener who drew such a paper has testified that he intended to write a will, though the evidence, if properly objected to, would have been rejected for incompetency, it is proper to permit the contestant to give in evidence a letter in which the witness stated that the alleged testator died intestate, for the purpose of impeaching him.

6. TRIAL-OBJECTIONS TO EVIDENCE-GROUNDS.

An objection to evidence, taken on the erroneous supposition that it would vary a written instrument, should be overruled, though the evidence itself is incompetent for other reasons.

Appeal from probate court, Colbert county; JOHN A. STEELE, Judge. This was a proceeding to probate the will of Ann E. Hornsby, deceased. The appellee, Julia W. Hall, propounded the instrument alleged to be a will for probate, and it was contested by the appellants, G. A. and U. M. Sharp,

v.5so.no.20-32

who claimed to be next of kin of the deceased. On the trial of the cause the contestants objected, and reserved several and separate exceptions to the admission in evidence of the circumstances of the making of the instrument contested; the relation the petitioner bore the deceased, Ann E. Hornsby; the non-delivery of the instrument; and the other facts as shown by the opinion. There were also separate exceptions reserved to the admission of the testimony of the witness Davis to the effect that he considered the instrument a will, and that he intended to draft a will. The grounds of these objections, and also of the objection and admission of the evidence in rebuttal, are shown in the opinion. The defendants requested the following charge in writing, and excepted to the court's refusal to give the same: "(6) The fact, if it be a fact, that Mrs. Hornsby did not dispose of all the property, must be considered with the other evidence by the jury to ascertain whether or not the instrument was intended to be a will." The other material facts appear in the opinion. There was a trial by jury, and a verdict for the proponent, followed by a judgment admitting the will to probate, and the contestants appeal.

Kirk & Almon, for appellants. J. B. Moore, for appellee.

STONE, C. J. There are few, if any, questions less clearly defined in the law books than an intelligible, uniform test by which to determine when a given paper is a deed, and when it is a will. Deeds, once executed, are irrevocable, unless such power is reserved in the instrument. Wills are always revocable so long as the testator lives and retains testamentary capacity. Deeds take effect by delivery, and are operative and binding during the life of the grantor. Wills are ambulatory during the life of the testator, and have no effect until his death. Out of this has grown one of the tests of testamentary purpose, namely, that its operation shall be posthumous. If this distinction were carried into uniform, complete effect, and if it were invariably ruled that instruments which confer no actual use, possession, enjoyment, or usufruct on the donee or grantee during the life of the maker are always wills, and never deeds, this would seem to be a simple rule, and easy of application. The corollary would also appear to result naturally and necessarily that if the instrument, during the life-time of the maker, secured to the grantee any actual use, possession, enjoyment, or usufruct of the property, this would stamp it irrefutably as a deed. The authorities, however, will not permit us to declare such inflexible rule. A declaration of trust by which the grantor stipulates to hold in trust for himself during life, with remainder to a donee, or succession of donees, certainly secures no use, enjoyment, or usufruct to the remainder-man during the grantor's life. Yet it is a deed, and not a will. 1 Bigelow, Jarm. Wills, 17, and notes; Gillham v. Mustin, 42 Ala. 365. Can a tangible distinction be drawn between such case and a direct conveyance, in form a deed, by which A. conveys to B., to take effect at the death of A.? The human mind is not content with a distinction that rests on no substantial difference. Conveyances reserving a life-estate to the grantor have been upheld as deeds. 2 Devl. Deeds, § 983; Robinson v. Schly, 6 Ga. 515; Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349. In Daniel v. Hill, 52 Ala. 430, 436, this court said: “A deed may be so framed that the grantor reserves to himself the use and possession during his life, and on his death creates a remainder in fee in a stranger." Almost every conceivable form of conveyance, obligation, or writing, by which men attempt to convey, bind, or declare the legal status of property, have, even in courts of the highest character, been adjudged to be wills. The form of the instrument stands for but little. Whenever the paper contemplates posthumous operation, the inquiry is, what was intended? 1 Bigelow, Jarm. Wills, 20, 25; Habergham v. Vincent, 2 Ves. Jr. 204; Jordan v. Jordan, 65 Ala. 301; Daniel v. Hill, 52 Ala. 430; Shepherd v. Nabors, 6 Ala. 631; Kinne