ber, 1863, was made by Horace Buckley and wife to George Mason, and recited a valuable consideration paid. It conveyed the lands in controversy. On motion of the plaintiff each of these deeds was ruled out, and defendant excepted. The ground of the objection and ruling was that they were not noted on the defendant's abstract. Counsel have failed to cite any authorities bearing directly on this question, and we ourselves have not been able to find any. 1 Amer. & Eng. Cyclop. Law, 46; Warv. Abst. 2, 3, 520, 521. We feel it our duty to interpret the statute by its own language. The language of the statute is that defendant must furnish "an abstract of the title or titles on which he will rely for defense." The defense in this case was that the title was in Hopkins, in whose right defendant claimed to hold. Neither Smith's nor Buckley's deed formed any part of the title on which the defense was rested. If they had any tendency, it was to prove that title had been divested out of Hopkins. But, being inoperative on their face, they could not divest title. They were neither intended nor calculated to support Hopkins' title. Their manifest object and purpose were to show that Mason had no title and could convey none to Gilligan. In other words, they formed no part of defendant's title. Their only tendency was to disprove plaintiff's. And Buckley's title being illegal and worthless on its face, this was notice to his vendee Mason, and to his subvendee Gilligan. There is no ground in this case on which to rest the claim of bona fide purchase. Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664; 3 Brick. Dig. 810, §§ 164, 165; State v. Conner, 69 Ala. 212. It follows that Gilligan is chargeable with knowledge of any imperfection apparent on the face of Buckley's title. The circuit court erred in excluding the deeds offered in evidence. Reversed and remanded.

GRIFFITH et al. v. MARSH et al.

(Supreme Court of Alabama. February 28, 1889.)

DEED-WHAT CONSTITUTES-RESERVATION OF LIFE-ESTATE.

An instrument, executed by a man and wife, commenced in the ordinary form of a deed, recited a valuable consideration, contained words of bargain, sale, and conveyance, and a covenant of warranty of title, binding on the heirs of the grantors, and was executed, witnessed, proved, and recorded in the manner proper for deeds. It contained the clause: 'And we, the said [grantors] agree that at and after our death the said [grantee] is to have all the benefits of said lands in fee-simple, but it is to belong to us as long as we or either of us shall live." Held a deed, and not a testamentary disposition.

Appeal from circuit court, Coffee county; J. M. CARMICHAEL, Judge.

This was a statutory real action in the nature of ejectment, brought by the appellants, Celia A. Griffith and others, as heirs of one Weekes, against the appellees, Needham Marsh and Jesse Forsyth, and was submitted on the following agreed state of facts:

"That the verdict in this case shall be controlled by the interpretation and construction of a certain instrument executed by B. M. Weekes and Nancy Weekes to Mary E. Bond on the 29th day of July, 1881. ** * * That if said instrument is a deed, then the verdict shall be for the defendants; if it is a will, then the title to the land is in the plaintiffs, and the verdict is to be for plaintiffs. That Mary E. Bond is dead, and B. M. Weekes is dead, and that said instrument was delivered at its date to said Mary E. Bond. Said instrument is in words and figures as follows, viz.:

“State of Alabama, Coffee County. Know all men by these presents, that we, Bartimeus M. Weekes and Nancy Weekes, his wife, for and in consideration of the fact that Mary E. Bond, daughter of Bartimeus M. Weekes, has been with us and waited on us in our afflictions, and to compensate her for the same, have this day bargained, sold, and conveyed to the said Mary E.

Bond the following property, to-wit: The S. E. of S. E. of section 18, and the N. W. of N. W. of section 20, and the S. W. of S. W. of section 17, and the N. E. of N. E. of section 19, all in township 5, range 21, containing 160 acres, according to the survey; also all the right and title we have to the S. W. of S. W. of section 19, T. 5, R. 21, (twenty-one.) And we, the said B. M. and Nancy Weekes, agree that, at and after our death, the said Mary E. Bond is to have all the benefits of said lands in fee-simple, but it is to belong to us as long as we or either of us shall live; and we warrant and defend the title hereby conveyed, and bind our heirs and assigns tothe same.

"Given under our hands and seals this 29th July, 1881.

"B. M. WEEKES. [L. S. “NANCY WEEKES. [L. S.

"Then follows the certificate of the probate judge that one of the subscribing witnesses certified the voluntary execution of the instrument by the grantors; and also the indorsement on the instrument, showing the fact of its having been filed in the office of probate judge, and recorded, and the book in which it was recorded, and the page. It was further agreed and understood, as a part of the agreed statement of facts, that said instrument has never been probated and admitted to record.' This being all the evidence before the jury, the court, at the request of the defendant in writing, charged the jury that said instrument was a deed, and passed the title to the lands sued for out of B. M. Weekes and Nancy Weekes, and vested it in Mary E. Bond, at the date of the execution and delivery of said instrument, and that they should find for the defendants.""

The plaintiffs excepted to the giving of this charge, and assign the same as error on this appeal.

W. D. Roberts, for appellants. J. D. Gardner, for appellees.

STONE, C. J. The fate of this case depends on the interpretation of a written instrument, executed by B. M. Weekes and wife to Mary E. Bond, bearing date July 29, 1881. The reporter will set out the instrument. In interpreting said instrument, the trial judge held it was a deed. If he was correct in that interpretation, there is no error in this record, and the judgment must be affirmed. The appellant contends that the paper title under which the suit was defended is testamentary in character; and, there being no probate of it as a will, it opposed no bar to the present suit, which is prosecuted by the heirs at law of Weekes, who executed the instrument.

In interpreting the deed or will, as we may find it to be, we have no aids, save those furnished by the instrument, its recitals, and the certificates attached to it. In form it is in all respects a deed, unless the clause hereafter noticed changes its character. It recites a valuable consideration, as distinguished from one merely good. It commences in the customary form of deeds, and contains words of bargain, sale, and conveyance. It contains a covenant of warranty of title, binding the heirs of the grantor, and concludes as follows: "Given under our hands and seals this 29th July, 1881." Signed and sealed by Weekes and his wife, and attested by two subscribing witnesses. Appended to it is a certificate of proof of its execution, made by one of the subscribing witnesses before, and certified by, the judge of probate, bearing date August 6, 1881; and on the same day a second certificate of the judge of probate that it was filed in his office for record, and recorded. And it is, as we have seen, executed by both Weekes and his wife. Now, these are all properties of a deed, and not of a will.

1 See statement of facts supra.

The instrument contains the following clause, and on it is based the contention that it is a will: "And we, the said B. M. and Nancy Weekes, agree that, at and after our death, the said Mary E. Bond is to have all the benefits of said lands in fee-simple, but it is to belong to us as long as we, or either of us, shall live." Certified proof of execution, and certificate of registration, in the absence of countervailing proof, not only raise the presumption of delivery, but are strongly persuasive to show that parties themselves regarded the instrument as a deed. In the present case, as we have no outside or attendant facts to aid us in its interpretation, we must deal with the writing as we find it. In Sharp v. Hall, ante, 497, (at the present term.) we showed that a deed may be made, and upheld as such, which reserves the entire use and enjoy-ment of the property to the grantor during life, and inures to the actual benefit of the grantee only at the death of the grantor. Elmore v. Mustin, 28 Ala. 309; Hall v. Burkham, 59 Ala. 349; Daniel v. Hill, 52 Ala. 430.

We think we carry into effect the intention of the parties to the present contract when we hold, as we do, that it was intended as a deed, and not as a will. Affirmed.

LIDDELL V. MILLER.

(Supreme Court of Alabama. February 28, 1889.)

HUSBAND AND WIFE-WIFE'S SEPARATE ESTATE.

On the purchase of a stock of goods by a partnership, a cash payment was made with funds advanced by one of the members, and notes were given for the balance of the purchase money. L. participated in the purchase, asserting, however, that he was acting as the agent of his wife, the notes being signed by him as "L., Agent, and his share of the cash payment being so charged to him. Held, that a levy upon an interest in the partnership effects as the property of L. would be sustained, it appearing that the wife had not contributed from her separate estate towards such purchase until after the levy, and then only contributed so much as was necessary to repay the amount advanced for the cash payment, and there being no way of distinguishing goods purchased for cash from those bought on time.

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge. This was a statutory trial of the right of property, and founded on an execution issued against D. Liddell, husband of appellant, in favor of the appel-lee, David A. Miller. This execution was issued on a judgment recovered by said Miller against said D. Liddell, and was levied on the undivided interest of said Daniel Liddell in the partnership effects of the firm of Crump & Liddell, consisting of dry goods, groceries, hardware, etc. Upon the levy of this execution, the appellant, Mary V. Liddell, the wife of the defendant in execution, made her affidavit, filed her bond, and interposed a claim to the goods so levied upon under the execution. The ground of the claim is set forth in the opinion. Upon the evidence, and at the request of the plaintiff in writing, the court charged the jury: "If the jury believe all the evidence, they should find a verdict in favor of plaintiff." The claimant excepted to the giving of this charge by the court, and also reserved an exception to the refusal of the court to give the following charge in writing: "The court charges the jury that, if they believe all the evidence in this case, they must find their verdict in favor of the claimant." The claimant appeals; and assigns the giving of the plaintiff's charges and refusing to give the charge requested by claimant

as error.

Denson & Tanner, for appellant. Amos E. Goodhue, for appellee.

SOMERVILLE, J. The cases of Wilder v. Abernethy, 54 Ala. 644, and Pollak v. Graves, 72 Ala. 347, announce principles which are fatal to the right of the appellant, Mrs. Liddell, to support her claim to the one-half interest in the stock of goods levied on under the execution in favor of the appellee against D. Liddell, the husband of the claimant. The entire stock of goods

belonged to Rogers and was sold to Crump, Young & Liddell, in January, 1887, for $2,000, Liddell asserting that he was acting as agent for his wife. Five hundred dollars of the purchase money was paid in cash, having been advanced by Crump for the partnership, one-third of which was charged on the books to "D. Liddell, Agent. The notes for the remainder of the purchase money were signed by W. B. Crump, A. Young, and "D. Liddell, Agent," and were paid from the profits of the business. No part of the wife's money went into the property, except so much as was necessary to repay Crump the amount advanced by him, and this was paid after the levy in this case had been made. The husband repudiated all claim to the property. Young sold his one-third interest to Crump and "D. Liddell, Agent," and the business was carried on in their names, but Liddell claiming all the time to act for the claimant, his wife. Under this state of facts the property levied on belonged to the husband, D. Liddell, and not to the claimant, and it was accordingly liable to the satisfaction of Miller's execution against him. Kennon v. Dibble, 75 Ala. 351; Wilder v. Abernethy, supra. The word "agent" was a mere descriptio persona, and exerted no talismanic influence to put in the wife the title of property which in law and good conscience belonged to the husband. The purchase of the stock of goods in question was essentially a purchase on credit, the amount advanced in cash paying for no specific goods which could be identified or distinguished from the remainder of the stock, and all the goods being in one commingled mass.

On the authority of the cases above cited, the judgment must be affirmed.

MANNING v. PIPPEN et al.

(Supreme Court of Alabama. February 28, 1889.)

1. HUSBAND and Wife-CONVEYANCES BETWEEN-EJECTMENT.

Since the Alabama act of February 28, 1887, defining the rights of married women, a deed from a husband directly to his wife vests the legal title in her, and ejectment may now be maintained based on such title.

2. SAME CONSIDERATION-CONTRACT TO MAKE A WILL.

A conveyance by a husband to his wife, based on her promise to execute her will, and devise to him one-third of her estate, including said lands, is based on a valuable consideration, and the recital in the deed of a valuable consideration is open to parol evidence to show such promise.

8. WILLS-CONTRACT TO MAKE A WILL-EQUITY.

Though equity could not have compelled specific performance by directing the execution of a will, yet it will fasten upon the land conveyed a trust as for the purchase money, and, so far as the land will furnish the means, will secure to the husband what he lost by her failure to keep her promise.

4. SAME-STATUTE OF FRAUDS.

If the promise of the wife be treated as simply a contract to receive and hold the land, in express trust to compensate her grantor by making a will, the statute of frauds applies, but if it be shown that the deed was obtained with a fraudulent intent, without any intention to make a will, and pursuant to that intention no will was made, a trust will result from such fraud, and the question of the statute of frauds becomes immaterial.

5. SAME-DEMURRER.

In order to set up the statute of frauds as a defense by demurrer, it must affirmatively appear by the bill that the contract was not in writing.

6. SAME LIMITATION OF ACTIONS.

There being no actionable breach until the death of the wife, the statute of limitations did not begin to run until her death.

Appeal from chancery court, Pickens county; THOMAS W. COLEMAN, Chancellor.

Bill by David Manning against Minnie F. Pippen and others to enjoin an action of ejectment, and to have declared void and canceled a deed from complainant to his wife, through whom defendants claim. Demurrer and mo

tion to dismiss the bill for want of equity were sustained, and complainant appeals.

M. L. Stansel, L. M. Stone, and Watts & Son, for appellant. Caldwell & Johnson, for appellees.

STONE, C. J. This case was finally decided on demurrer to the bill as amended. A demurrer is an admission of the truth of every fact and intent which is sufficiently averred, and it admits no more. Lake v. Association, 72 Ala. 207; Flewellen v. Crane, 58 Ala. 627; Railway Co. v. Rand, 83 Ala. 294, 3 South. Rep. 686. One of the purposes of the present bill is to enjoin a suit at law for the recovery of a tract of land, instituted by Mrs. Pippen in July, 1886. If the averments of the bill be true, Mrs. Pippen's ejectment suit is founded on an alleged inheritance from her mother, and the mother's title rests on a deed to the lands made by the said David Manning directly to her at a time when the relation of husband and wife subsisted between them. Commenced, as this suit was, in July, 1886, the deed from the husband directly to the wife did not vest a legal title in her, and, as a consequence, the action of ejectment founded on such title could not be maintained. McMillan v. Peacock, 57 Ala. 127; Helmetag v. Frank, 61 Ala. 67; Warren v. Jones, 68 Ala. 449; Powe v. McLeod, 76 Ala. 418; Maxwell v. Grace, ante, 319. If the suit had been brought after February 28, 1887, when the new statute defining the rights of married women was approved, the action could have been maintained on the title averred. Maxwell v. Grace, supra.

The original bill avers that the complainant, Manning, intermarried with Mrs. Atkinson in 1868; that she had at the time of the marriage two minor or infant children, and that Minnie, now a married woman, is one of them. The other, a son, has since dietl, leaving a widow and two infant children. The bill further avers that, in 1871, he, the said David, made to his wife a deed to said lands, being induced to do so by the earnest solicitations and importunities of his wife, she promising as a consideration therefor, and, as an inducement thereto, to make and execute her will, and therein bequeath and devise to him one-third of her estate, including said lands; and that, in consideration of this promise on her part, he did execute a deed, conveying the lands to her. The bill further avers that Mrs. Manning died in 1884 without complying with her promise, and without making any will. The bill avers that the deed to the wife recites a valuable consideration, which is not true as stated. The true consideration, it avers, was the promise of the wife to make her will, and therein provide for the husband, as is stated above. It is not stated whether or not her said promise to make a will was in writing. In this state of the pleading, we cannot assume that Mrs. Manning's promise was simply oral, and pronounce absolutely on the sufficiency of the averments to take the case without the influence of the statute of frauds. To authorize that defense to be raised by demurrer, the bill must show affirmatively that the contract or promise declared on was not in writing. Bromberg v. Heyer, 69 Ala. 25; Phillips v. Adams, 70 Ala. 373.

Treating the case, then, as if Mrs. Manning's alleged promise to make a will was in writing subscribed by her, the question arises, under what condition and to what extent is such promise binding? Pretermitting for the present her disability on account of coverture, the authorities are overwhelming, and rest on the soundest basis, that such a promise, supported by a valuable consideration, is valid and binding, unless assailed on some other sufficient ground. Bolman v. Overall, 80 Ala. 451, 2 South. Rep. 624; Johnson v. Hubbel, 10 N. J. Eq. 332, 66 Amer. Dec. 773, and note containing citation of authorities, 784; Caviness v. Rushton, 101 Ind. 500. The case made by the present bill is that, relying on the said promise of Mrs. Manning to make the alleged will, he, the complainant, conveyed to her the land in controversy, and she died the owner of it. If this be true, Mrs. Manning's coverture is no bar to