selves a legal title to the lands in controversy. This they attempted to do in two ways: (1) As assignees of a mortgage on the lands, which had been executed by J. C. and W. A. Bryan, on October 12, 1885, to the assignors, G. W. Sanders & Co., who were the mortgagees in the instrument; and (2) as purchasers under a sale of the mortgaged premises, made by themselves under the power which passed to them, as part of the security, with the assignment of the mortgage.

1. As assignees of the mortgage the plaintiffs did not acquire the legal title. Admitting that the words, "bargain, sell, and convey." which appear in the language of the assignment, were interpolated with the knowledge or consent of the assignors, (the appellants,) the assignment nevertheless was not operative to convey the legal title of the mortgagee, but only an equity, for the reason that it was neither attested by a witness nor acknowledged in such manner as to dispense with such attestation, as required by statute in the case of ordinary conveyances. Code 1886, §§ 1789, 1790; Code 1876. §§ 2145, 2146. It was held in Graham v. Newman, 21 Ala. 497, decided as far back as 1852, that, to pass the legal title held by a mortgagee of land to an assignee of the mortgage premises, there must be a deed, executed with due formality, and containing suitable operative words of conveyance, or, in other words, precisely such a conveyance, in form and words, as is required to be effectual in conveying the legal title to land from any other owner to an ordinary vendee. This is the settled doctrine of the adjudged cases in all those states where, as with us, a mortgage preserves its character as conferring an estate in land, rather than a mere lien or security, the general rule prevailing that the legal title to a mortgagee's estate can only be transferred by deed. 1 Jones, Mortg. (3d Ed.) § 787; Adams v. Parker, 12 Gray, 53; Smith v. Kelley, 27 Me. 237; Vose v. Hundy, 2 Greenl. 322; Code 1886, §§ 1789, 1790. The assignment, we repeat, did not, for the reasons given above, per se operate to transfer the legal title of the mortgagees to the plaintiffs.

2. It is contended, further, that although the assignment may not have operated to transfer the legal title to the plaintiffs, they acquired it by an execution of the power of sale, which is a part of the security, and which is authorized by statute to be executed by any one "who, by assignment or otherwise, becomes entitled to the money thus secured." Code 1886, § 1844. We may concede this to be the general rule under the construction which has been given to this statute, which has the same effect as if the statute were made a part of the mortgage deed. Buell v. Underwood, 65 Ala. 285. The difficulty to be encountered in this aspect of the case lies in the fact that the equitable assignees of the mortgage themselves executed the power, through the agency of an auctioneer, and became the purchasers at their own sale. Whether they could have made a deed directly to themselves so as to vest a legal title in themselves as purchasers, does not necessarily arise in the case. The auction sale very certainly did not operate to vest the legal title in the purchaser without the aid of a deed. Tripp v. Ide, 3 R. I. 51. The auctioneer was the mere agent of the appellees to make the sale; his memorandum of the property, price, terms of sale, and names of the purchasers, and of the person on whose account the sale was made, being such a note of the contract as to take the sale out of the operation of the statute of frauds. Code 1886, § 1733. But the deed was made in the name of the auctioneer, and not of the donee of the power, who was his principal, and, such agent having no title, conferred none on the purchaser. Where a deed is executed by an agent in his own name, and not in the name of the principal, it is not the deed of the principal, and can have no operation in a court of law, or as a conveyance of the legal title. The deed should have been executed by the donees of the power, who alone had authority to do so. Munn v. Burges, 70 Ill. 604; 2 Jones, Mortg. § 1891; Jones v. Morris, 61 Ala. 518; Taylor v. Association, 68 Ala. 229. The plaintiffs, having nothing more than an equitable title to the lands, were not enti

tled to recover in the present action. The court consequently erred in giving to the jury the charge requested, to find for the plaintiffs, if they believed the evidence.

3. The court properly refused to allow the defendants to put in issue the amount of the debt from G. W. Sanders & Co., the mortgagees, to the plaintiffs, which was the consideration of the transfer of the mortgage. It is only the amount of the mortgage debt which the statute authorizes to be put in issue in an action of ejectment brought by a mortgagee. Code 1886, § 2707. Other assignments of error are needless to be considered. Reversed and remanded.

SWIFT et al. v. EASTERN WAREHOUSE CO.

(Supreme Court of Alabama. February 27, 1889.)

DAMAGES-PROXIMATE AND REMOTE.

In an action for damages for delay in delivery of cotton, it appeared that the insurance thereon expired on the day when the delivery should have been made, and that if plaintiffs had kept the cotton insured during the period of delay, the insurance would have cost them eight dollars, but there was no proof that such insurance was obtained; also that cotton buyers borrow money from banks at a high rate of interest with which to buy cotton, and that the interest stops on deposit of the bill of lading with the bank; and that, owing to the delay in delivery, plaintiffs had to pay interest for one additional day; but there was no proof that defendants were notified of these facts. Held, that such damages were not the natural result of the breach, and could not be recovered.

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

This suit was brought by John F. Swift & Co. against the Eastern Warehouse Company, and sought to recover for damages for failure on the part of defendants to deliver a certain lot of cotton at the time plaintiffs ordered it to be delivered. Upon the evidence the court charged the jury, at defendant's request, "that if they believed the evidence, they must find for the defendant." Plaintiffs reserved an exception to this charge, and now assign the

same as error.

Gardner & Wiley, for appellants. Parks & Son, for appellee.

STONE, C. J. When damages are, and when they are not, too remote to be the subject of recovery, is not always easy of determination. The decisions of this court are that such damages as naturally result from the breach, according to the usual course of things, or such as naturally suggest themselves as likely to result from the breach, are proximate, and may be recovered, while those which result abnormally, not naturally, from some outside, exceptional fact or circumstance, cannot be a ground of recovery, unless such fact or circumstance be communicated, and thus become an element of the agreement. This is our rendering of the phrase, so often met with in the books, that only such damages are recoverable as were had in contemplation by the parties as the result of the breach. Daughtery v. Telegraph Co., 75 Ala. 168; Telegraph Co. v. Way, 83 Ala. 542, 4 South. Rep. 844; Lehman v. Pritchett, 84 Ala. 512, 4 South. Rep. 601. There was no attempt to prove actual damage or injury in this case, except what is stated below. The proof was that the shipment was delayed one day on account of the neglect or oversight of the warehouse company, and that, if the owners desired the cotton covered by insurance, it would have required them to insure the entire lot (100 bales) for one additional day, at a cost of eight dollars. The insurance expired on the day on which the cotton was ordered to be delivered; but there was no proof that insurance had been taken out for the additional day. It was also proved that cotton buyers borrow money from banks at a high rate of interest, with which to purchase cotton, and that the interest stops on de

posit of the bill of lading with the bank; and that in consequence of the defendant's failure to deliver, plaintiffs had to pay interest for one more day. These were the two elements of damage relied on for recovery, and there was no attempt to prove that the warehouse company was notified of either of these alleged facts. The damages claimed were not the natural result of the breach, and hence did not furnish a good cause of action. Affirmed.

MARSHALL v. OLDS et al.

(Supreme Court of Alabama. February 27, 1889.)

EQUITY-PLEADING AMENDED BILL-DEparture.

An original bill claimed a resulting trust in favor of complainant, averring that her father furnished money for her benefit to defendant with which to redeem the land, and that he took a conveyance of the legal title to himself. The amended bill averred that complainant's father furnished the money to redeem for his own benefit, that defendant took the legal title to himself, etc.; that her father was dead, and that she was one of his heirs. Held, that the amended bill was a radical departure from the case made by the original bill, and a demurrer for that reason should have been sustained.

Appeal from chancery court, Jackson county; THOMAS CовBS, Chancellor. The bill in this case was originally filed by the appellee, Martha E. Olds, against the appellant, George H. Marshall, and sought to have a resulting trust declared in certain lands described in the bill. By amendment, certain heirs of one A. Marshall were made parties complainant. There was a demurrer to the second amended bill, which was overruled by the chancellor, and from this interlocutory decree of the chancellor defendant appeals.

Dobbs & Howard and R. C. Briskell, for appellant. J. E. Brown and R. C. Hunt, for appellees.

SOMERVILLE, J. The amended bill, in our opinion, is a radical departure from the case made by the original bill, and makes an essentially new case by materially changing the title under which the complainant, Mrs. Olds, claims relief. The original bill claimed a resulting trust in the land for Mrs. Olds' sole benefit, based on an alleged agreement between her father, one A. Marshall, and herself, by which he furnished the money to the defendant H. Marshall, his son, to redeem the land in controversy from sale under a decree of the chancery court. It alleges that the son redeemed it accordingly, taking a conveyance of the legal title to himself. The amended bill alleges both a new right or title and a new contract, in this: that the father, A. Marshall, made the redemption of the land for his own use and benefit, and not for that of Mrs. Olds, thus creating a resulting trust in his own favor; the legal title having been taken in the name of H. Marshall, the son. The death of the father is further alleged, and the title of the complainant thus becomes that of an heir, and not only an heir, but a tenant in common of the lands with the other complainants, who have been made parties complainant by the amendment. Under the rule laid down by our past decisions, the chancellor erred in not sustaining the demurrer to the second amended bill. Ward v. Patton, 75

Ala. 207; Rapier v. Paper Co., 69 Ala. 476; Jones v. Reese, 65 Ala. 134; Scott v. Ware, 64 Ala. 174; Glass v. Glass, 76 Ala. 369.

Reversed and remanded.

CAMPBELL et al. v. DURHAM.

(Supreme Court of Alabama. February 27, 1889.)

SPECIFIC PERFORMANCE-MISTAKE-OMISSION TO POINT OUT BOUNDARY LINE.

On a bill for specific performance of a contract for the conveyance of a tract of land, it appeared that at the time the contract was made the land was inclosed by a fence, which, in front of the dwelling-house, extended beyond the southern line, inclosing a strip of one and one-half acres, belonging to a railroad company, on which was a grove of trees, and through which was the only mode of ingress and egress from the dwelling to the public road. There was no visible mark of the boundary lines other than the fence, and a person looking at the premises would naturally assume that it was the boundary line. Defendant purchased the tract for his residence. No information was sought or given as to the location of the lines. Held, that as the defendant had been mistaken as to a material fact by the omission of plaintiff to point out the lines, specific performance would be denied, whether the omission was intentional or unintentional.

Appeal from chancery court, Jackson county; THOMAS COBBS, Chancellor. Bill for specific performance by W. B. Campbell and Robert F. Proctor against Jesse R. Durham. Bill dismissed, and complainants appeal. Brown & Kirk, for appellants. H. C. Hunt, for appellee.

CLOPTON, J. Appellants seek by the bill the specific performance of a contract for the sale of a tract of land to the defendant. The contract is in writing, and, so far as appears upon its face, is plain and certain as to the subjectmatter and the consideration, and is fair, just, and reasonable as to its provisions concerning the rights and obligations of the parties. Notwithstanding such may be the apparent character of the contract, specific execution is not a matter of absolute right. In an application to a court of equity, the defendant may rebut the prima facie case made by the contract alone, and show, by proof of extrinsic facts, that specific performance would not be strictly equitable. From our own decisions the following principles governing the discre tion of the court in decreeing the enforcement of contracts may be regarded as settled: The agreement must be free from unfairness, hardship, or mistake going to its essence. A fraudulent representation or concealment, sufficient to avoid it at law, or for its rescission or cancellation in equity, is not essential to a denial of specific performance. If the contract is obtained by the suppression of material facts known to the party seeking performance, and unknown to the defendant; or if the defendant was led into making it by mistake or surprise without fault on his part, though not misled by positive representations of the other party; or if it is impressed with any inequitable feature, the court will refuse to enforce the contract. Byars v. Stubbs, 85 Ala. 256, 4 South. Rep. 755; Cowan v. Sapp, 81 Ala. 525; Railroad Corp. v, Babcock, 6 Metc. 346.

There is no controversy as to the terms of the contract, or the description of the land as expressed therein, or to the adequacy of the consideration. The special defense is that the defendant was led, by the conduct of complainants, into the mistake of believing and understanding that a strip of land adjoining the southern boundary was included, when in fact it does not belong to the tract, and that such mistake is in respect to a material fact concerning the subject-matter of the contract. The complainant agreed to sell and convey to the defendant the N. E. of the S. E. of section 24, township 4, range 5 E. The Memphis & Charleston Railroad runs nearly parallel with the southern line of the tract. All of the land, except a small portion, had been years previously, and was at the time of the agreement to sell, inclosed by a fence, and about 18 acres in front of and around the dwelling-house, which was located in the south-east corner, was inclosed separately by a division fence, running south-west and and north-east in the rear of the dwelling. The fence in front of the house extended beyond the southern line, and inclosed a strip of land, consisting of about one and one-half acres, which was a part of the right of

way of the Memphis & Charleston Railroad Company, and on which strip is a grove immediately in front of the dwelling. The only mode of ingress and egress to and from the dwelling and the public road, which runs between the railroad and the fence, is through this right of way. Other than the fence, there was no visible mark of the lines of the tract of land. The defendant purchased the land for the purpose of making it his residence, and there can be no question that the strip of land mentioned not only enhanced its value, but was necessary for its convenient use and enjoyment. Any person going to look at the land with a view to its purchase would naturally assume that the fence which separated it from the adjoining property was the fixed and true boundary. The complainant Proctor, who made the contract of sale with the defendant, admits in his evidence that he told defendant that the front of the premises was under a plank fence; and that the whole of the tract except a small portion next to the mountain was under fence. He further testified that the defendant did not ask him where the lines were, or he would have told him; and that he made no representations as to the lines. The defendant testifies and in this he is not contradicted-that he did not know where the lines were, and that Proctor did not inform him that a portion of the right of way of the railroad company was inclosed by the fence. We do not mean to intimate that the failure to disclose such material fact was with the intent to deceive or mislead; this is not requisite. If the defendant fell into the mistake made probable, or induced by the omission of the complainants to disclose the material fact, whether such omission was intentional or unintentional, a specific execution of the contract will be prevented on settled principles of equity. Pom. Cont. § 244.

Denny v. Hancock, L. R. 6 Ch. 1, is a case similiar in its features, and involved the same principles as the present. On a sale of a small residential property, a plan was exhibited which showed the western side as bounded by a strip of ground covered with shrubs or trees. The purchaser, with the plan before him, inspected the property, and saw on the western side a belt of shrubs, including a few large trees, bounded by an iron fence. The real boundary was not easily visible, being some stumps covered by the shrubs. The purchaser believed that he was buying everything up to the fence, but afterwards discovered that the trees and the fence stood on the adjoining land. The court held that he would naturally conclude the iron fence to be the boundary; there was nothing to put him on inquiry; he had been misled by the fault of the vendors; and that specific performance could not be decreed against him. The evidence shows that the defendant in this case believed that he was buying up to the fence. He would not be likely to conclude that the complainants or any previous owner had inclosed land not belonging to the property. The fact that it was inclosed was calculated to dispel any such doubt as would influence him to make inquiry in regard to it. A specific performance will not be decreed when there is a material mistake as to the lines or boundaries, which are unknown to the vendee, and in regard to which he is not put upon inquiry. Though not intended, the complainants are at fault in not making, under the circumstances, a disclosure of the fact that the strip of land inclosed did not constitute a part of the tract purchased. In such case the court will not decree specific performance. Affirmed.

THOMAS et al. v. ST. PAUL M. E. CHURCH et al.

(Supreme Court of Alabama. February 27, 1889.)

COVENANTS-AGAINST INCUMBRANCES-EQUITABLE RELIEF.

Where, after an exchange of lands by deeds containing covenants of warranty and against incumbrances, it appears that one of the tracts is subject to a vendor's lien, equity will compel the grantor to pay off or remove the incumbrance, or give the grantee suitable indemnity.