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of the contract of shipment. Huston v. Peters, 1 Metc. (Ky.) 558. Former decisions of this court can be maintained only on the ground that a railroad company may, by special contract, or the usages of the business, govern the manner of delivering freight, and the period, after the transportation is complete, at which their responsibility as a carrier ceases. In Railroad Co. v. Wood, 66 Ala. 167, the corn received for transportation was consigned to a "Aag station,” where the company had neither agent nor depot of which the consignee was informed. The car containing the corn was placed on a side track at the station. It was held that railroad companies, not being required by law to construct a warehouse or depot at every station on its line, and the consignee being advised at the time of the shipment that there is no agent or depot, and that the exigencies of the business do not require the company to keep an agent or depot at the station to which the goods are consigned, there is an implied consent that the carrier's responsibility shall cease on delivery of the goods according to the reasonable and proper usage of the business; and that the liability as a carrier terminated with the safe delivery of the car on the side track; and that there was no assumption of liability as warehousemen. It is said: “We can see no reason why a railroad company acting as a common carrier cannot stipulate by a contract, express or implied, that their liability as a carrier shall terminate with a delivery at a particular point, and that they will assume no liability as warehousemen.” As to stations where there are agents or depots, it is remarked that the rule governing the liability of railroad companies, whether as carriers or warehousemen, is correctly stated in Railroad Co. v. Kidd, 35 Ala. 209. In the case last mentioned the contract of the company was to deliver the goods to their own agent. It was held that by the contract of shipment the company impliedly agreed to act as consignee of the owner, and imposed upon themselves, not not only the duty of safely carrying to the place of destination, but also of keeping the goods after their arrival, until called for by the owner. For the performance of the former duty they were responsible as carriers, and for the discharge of the latter, as warehousemen. It is said: “If we do not adopt this construction, then the duties of the company were precisely the same as if the cotton had been consigned to the owner himself, and no special purpose was either designed or accomplished by making the agent of the company the consignee. The decision rests on the principle that a railroad company may contract for the cessation of their responsibility by a delivery to their own agent; that is, to themselves. In Buckley v. Railway Co., 18 Mich. 121, where it was ruled that, in the absence of usage, special circumstances, or agreement, the liability of railroad companies for goods in warehouse awaiting delivery is that of cominon carrier, the court said: “The course to be pursued by the carrier to shield himself from further responsibility in his quality of carrier, where the transportation is accomplished, is not the subject of abstract law, disconnected from the surrounding circumstances, but is a matter depending upon contract, and to be determined by reference to the express stipulations of the parties, or the varying facts from which, when presented, the law will infer the rights, duties, and obligations of the parties.” There is no incompatibility in a railroad company being both carrier and warehouseman, but cannot have custody in both capacities of the same property at the same time. Neither is there any inconsistency in passing goods from themselves as carriers to themselves as warehousemen. By the settled rule in this state, though the railroad company continues responsible as a common carrier after the goods have been transported to their place of destination, and stored in the depot, until the consignee or owner has had reasonable opportunity to remove them, when a reasonable time has elapsed, they become, by operation of law, warehousemen; the law, by its own operation, passes the goods from thein as carrier to them as warehousemen. There can be no sufficient reason why the consignor and the company may not stipulate that the former waive the goods remaining in store a reasonable time, and that the company's responsibility as carrier shall cease on storing them in their depot, and thereafter become liable as warehousemen.

The courts of many other states, and doubtful if not the weight of authority, maintain the rule that from the necessary manner in which the business of railroad companies is conducted, and from their custom to have platforms on which to place, and warehouses or depots in which to store, goods carried, the company discharges its whole duty as a carrier when it stores the goods in the warehouse or depot, to keep until called for, if the consignee or owner is not there to receive them; and that such delivery from themselves as common carriers to themselves as keepers for hire terminates their responsibility as common carriers; that in such case the company ceases to be a common carrier on the completion of the duty of transportation, as matter of law, and assumes, as matter of fact, the character of warehousemen. Rice v. Hart, 118 Mass. 201; Gashweiler v. Railroad Co., 83 Mo. 112; Rothschild v. Railroad Co., 69.Ill. 164; McCarty v. Railroad Co., 30 Pa. St. 247; Mohr v. Railquad Co., 40 Iowa, 580; Butler v. Railroad, 8 Lea, 32. This rule certainly has the merit of being definite, and easy of application. Certainly a stipulation which terminates the company's responsibility as carrier on the completion of the transportation and storage of the goods in the depot-a contractual regulation of the place, time, and manner of delivery, substituting a rule sustained by courts of the highest authority for the rule established in this state -cannot be regarded as opposed to law or public policy. By the terms of the bill of lading, the defendant's responsibility as a common carrier terminated when the goods were transported to Auburn, and safely stored in the depot. The liability thereafter was that of a warehouseman.

We are unable to discover the relevancy of the evidence as to the agent's habits, unless connected with evidence showing such notoriety that knowledge of the company may be inferred, or showing some causal connection between his habits and the destruction of the goods. The same observation applies to the evidence of the bad character of the servant employed at the depot, without stating in what respects it is bad, so as to show its relevancy. The statement of the agent to McElhaney was also inadmissible. It did not relate in any way whatever to the fire, or to the goods of plaintiff, and was but a narrative of a past event.

Reversed and remanded.

MURRAY et al. o. MONEALY et al.


A mortgage of a stock of merchandise authorizing the mortgagor to continue the sale of the goods, which expressly stipulates that such sale shall be exclusively for the benefit of the mortgagee, is valid as against the mortgagor's creditors, in the absence of evidence of actual' fraud. Appeal from chancery court, Henry county; JOHN A. FOSTER, Chancellor.

General creditor's bill by Murray, Dibrell & Co., to have a deed of assignment by McNealy & Cureton to Smith set aside, and also to have declared void a mortgage by McNealy & Cureton to Davis & Son. Decree finding the mortgage valid, and plaintiffs appeal.

W. A. Scott, for appellants. J. F. Roper, for appellees.

SOMERVILLE, J. The point chiefly discussed, both at the bar and in the brief of counsel, is the validity of the mortgage executed by the defendants McNealy & Cureton to Davis & Son on November 18, 1887, transferring to the mort

Concerning the validity of chattel mortgages of stocks of goods of which the mortgagor is allowed to remain in possession with power to sell, see Owens v. Hobbie, (Ala.) 3 South. Rep. 145, and note; Davis v. Scott, (Neb.) 34 N. W. Rep. 353, and note.

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gagees a stock of merchandise then in the possession of the mortgagors for the purpose of securing a debt described in the instrument. As to the bona fides of this debt there is no serious controversy. Nor is any actual fraud established by the testimony which can in any way vitiate the transfer of the goods. It is contended that the mortgage is rendered fraudulent on its face by the provision contained in it authorizing the niortgagors, McNealy & Cureton, to continue the sale of the goods, although it is expressly stipulated that such sale shall be exclusively for the benefit of the mortgagees. It is provided that “all moneys arising from the sales of said goods” shall eo instanti be the property of the mortgagees, and shall be paid over to them at the end of each week, or oftener if required, and shall go as credits on the mortgage debt, the mortgagors expressly agreeing that all such sales "shall be for and on account" of said mortgagees. If any of the goods are sold on a credit, the accounts are also to pass to the mortgagees as their property, and be credited as so many payments on the mortgage debt. The law day is fixed on February 1, 1888, the day the secured debt feil due. There is no clause anywhere contained in the mortgage which can be construed, expressly or by implication, as evincing an intention to permit the mortgagors to reserve any benefit to themselves, or any power of disposition over the goods inconsistent with the idea that the property is not to be held strictly subject to the lien of the mortgage as a bona fide security for the debt.

În Benedict v. Renfro, 75 Ala. 121, we discussed at length the subject of mortgages on stocks of merchandise, where the mortgagor was permitted to remain in possession, and to sell the goods in due course of trade for his own benefit. We held that such a power, accompanied with continued possession, conferred on the mortgagor a dominion over the property, which was utterly inconsistent with and subversive of the mortgage lien, rendering the mortgage itself virtually a conveyance "made in trust for the use of the person making it," and stamping it with invalidity for fraud, as tending inevitably to hinder and delay the creditors of the mortgagor. Anticipating such a case as that now before us, we then said: “We are not to be understood as intending, in this opinion, that a mortgage of merchandise would be rendered conclusively invalid where the mortgagor is in good faith left in possession of the goods, with power to sell for the exclusive use of the mortgagee, holding the proceeds of sale for his benefit. In such a case, he may well be deemed the mere agent of the mortgagee acting for him and in his behalf." In Robinson v. Elliott, 22 Wall. 513, 524, (1874,) where this subject is elaborately discussed by the supreme court of the United States, it was observed by Mr. Justice Davis, that the court was not prepared to say that a mortgage would not be sustained “which allows a stock of goods to be retained by the mortgagor, and sold by him at retail for the express purpose of applying the proceeds to the payment of the mortgage debt.” "Indeed, it would seem,” he observed, "that such an arrangement, if honestly carried out, would be for the mutual advantage of the mortgagee and the unpreferred creditors.” The mortgage in that case was held fraudulent and void on the same ground stated by us in Benedict v. Renfro, 75 Ala. 121, that the mortgagors were permitted to deal with the property as their own, without covenant to account with the mortgagees for the proceeds of sale, and without recognition that the property was sold for their benefit. The principle controlling this case is not distinguishable from that decided in Insurance Co. v. Foster, 58 Ala. 502. There an assignment was made conveying to a preferred creditor, in the early part of the year, a plantation, and the crops to be raised during the year, and the personal property used in cultivating them. It was stipulated that the property should remain in the possession of the grantors to be used by them in making the crops which were to be delivered to the grantee as soon as made and gathered, the proceeds to be applied to the payment of the secured debts. No actual fraud being shown, the assignment was sustained on the ground that it was contemplated that the whole property was to be devoted to the satisfaction of the mortgage debt, without the reservation of any benefit to the grantor. Said BRICKELL, C. J.: “If the crops to be produced are, with the existing property, to be devoted to the payment of the secured debts, it has not been supposed such a stipulation is a reservation of a benefit to the debtor, though thereby the residuum which must revert to him may be increased. It is not unusual in assignments to provide that the assignees, or the debtor under their direction, may continue the business; and if it appears this is done, not for the benefit of the debtor, and to the prejudice of the unsecured creditors, but to promote the interest of the creditors who are preferred, they are sustained.” Many cases, are cited illustrative of the principle involved, and sustaining the conclusion reached by the court.

The precise question here involved has been many times considered by the New York court of appeals. It arose in Conkling v. Shelley, 28 N. Y. 360, (1863,) where the court sustained such a mortgage of a stock of merchandise as valid, it being declared to be neither unlawful nor fraudulent per se. It was said: "Such an agreement made the mortgagors agents of the mortgagees. Their possession and their sales were, in effect, those of the mortgagees. It was as if the latter had taken possession and placed a third person in charge as agent to sell and account to them. They could not have escaped from crediting on their indebtedness the proceeds of sales made by such an agent, because he had fraudulently or dishonestly misapplied or employed the money." A like conclusion was reached in Ford v. Williams, 24 N. Y. 359, and Miller v. Lockwood, 32 N. Y. 293. The question again came up before the same court in Brackett v. Harvey, 91 N. Y. 215, decided as late as 1883, and the doctrine declared in these cases was reaffirmed without dissent by any member of the court. It was said by FINCH, J.: “These cases went upon the ground that such sale and application of proceeds is the normal and proper purpose of a chattel mortgage, and within the precise boundaries of its lawful operation and effect. It does no more than to substitute the mortgagor as the agent of the mortgagee to do exactly what the latter bad the right to do, and what it was his privilege and his duty to accomplish. It de. votes, as it should, the mortgage property to the payment of the mortgage debt.” The controlling principle of the case is that the mortgagee is not prohibited by any rule of law or of public policy from employing the mortgagor as his agent to sell the goods on his (the mortgagee's) exclusive account, without authority to use or appropriate the proceeds of sale to any other purpose than paying the mortgage debt. A like principle has been recognized by the English courts, where trustees, under general assignments made for the benefit of creditors, have been permitted to stipulate for the employment of the debtor as their agent to dispose of the goods. Janes v. Whitbread, 5 Eng. Law & Eq. 431. The New York doctrine seems to us to be sound in principle, and it has been followed in Virginia, New Hampshire, Illinois, Connecticut, Wisconsin, Ohio, and other states, and in the circuit courts of the United States. Marks v. Hill, 15 Grat. 400; Wilson v. Sullivan, 58 N. H. 260; Goodheart v. Johnson, 88 Ill. 58; Kendall v. Carpet Co., 13 Conn. 383; Fisk v. Harshaw, 45 Wis. 665; Kleine v. Katzenberger, 20 Ohio St. 110; Hawkins v. Bank, 1 Dill. 462; Overman v. Quick, 8 Biss. 134; Pierce, Mortg. Mdse. SS 43-49; 139. The mortgage is not void on its face, and there is nothing in the testimony which proves that it was intended otherwise than a bona fide and fair appropriation of the debtor's property to secure a debt honestly due, without reservation of benefit to the grantors. Gazzam v. Poyntz, 4 Ala. 374. The deed of assignment made January 25, 1888, by which McNealy & Cureton, the mortgagors, reaffirmed their assent to the mortgage of November 18, 1887, need not be noticed, as it exerts no influence on the question in hand.

The decree of the chancellor correctly pronounces the mortgage free from all fraudulent intent, and legally valid, and is atfirmed.


(Supreme Court of Alabama. February 27, 1889.) EJECTMENT-EVIDENCE-ABSTRACT OF TITLE.

Under Code Ala. 1886, $ 2697, requiring a defendant in an action to recover real property to furnish “an abstract of title or titles on which he will rely for defense, a defendant is not prevented from introducing deeds which form no part of, and have no connection with, his own title, but which tend to show the invalidity of plaintiff's title.

Appeal from circuit court, Mobile county; W. E. CLARK, Judge.

Action in the nature of ejectment, brought by Martin Gilligan against Martin C. Robbins. Verdict and judgment for plaintiff, and defendant appeals.

Richard P. Deshon, for appellant. Pillans, Torrey & Hanaw, for appellee.

STONE, C. J. The present suit is a statutory real action for the recovery of a lot of land situated in the western part of the city of Mobile. The case was tried on the issues of not guilty and 10 years statute of limitations. Each party served on his adversary a written notice, requiring an abstract of the title on which they severally relied. The suit was instituted by Gilligan in November, 1886. The plaintiff, Gilligan, made title as follows: Deed from one George Mason and wife to him, dated in November, 1863, on a recited valuable consideration; possession taken under it, and continued until 1869, when the plaintiff and his father's family, of which he was an infant member, were turned out of possession, and ever afterwards remained out of possession. The manner of eviction was not shown, but it was not claimed that it was under legal process. No effort was made to prove title in George Mason, nor was any anterior possession shown in Mason, or in any one else under whom he asserted claim. The deed of Mason and wife was the origin of plaintiff's title, so far as the record informs us. In answer to plaintiff's de mand on defendant for “an abstract of the title or titles on which he (would) rely for defense,” (Code of 1886, 8 2697,) defendant had furnished the following: (1) Espejo grant. (2) Partition. (3) Deed dated 9th February, 1832, from A. Espejo to Francis Girard. (4) Deed dated 2d December, 1853, from heirs of Girard to R. D. Hopkins. Defendant went into possession of the land in controversy as the tenant of R. D. Hopkins, and so continued in possession up to this suit. He defends under Hopkins' title.”

After plaintiff had proven his case as stated above, and after defendant had read in evidence the deed from Girard's heirs to R. D. Hopkins, noted in the abstract supra, he (defendant) offered in evidence two deeds, the purport of which was to show the source from which Mason derived the title afterwards conveyed by him to Gilligan. The first of these deeds was dated in March, 1863, and was executed by J. Little Smith, styling himself, “Receiver for the receiver district No. 1 in the Southern division of the judicial district of Alabama.” This deed conveyed the lot in controversy to Horace Buckley, on a recited valuable consideration. It shows on its face that it was not made by Smith as an individual, but as an officer of the Confederate States government. It recites that the sale and conveyance were made “in pursuance of a decree of sequestration rendered, and an order for the sale of said lands made by the honorable the district court of said Confederate States for the Southern division of the district of Alabama, at the December term, A. D. eighteen hundred and sixty-two, of said court, in the case entitled “The Confederate States of America v. the Property of R. D. Hopkins,' an alien enemy." The Confederate States were then engaged in a war with the United Siates, and only adherents to the government of the United States could be classed as alien enemies of the Confederate States. The second deed offered was dated in Septem

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