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so incorporated, the trustee was to convey the lands to the corporation. These lands were to be appraised and valued by appraisers, for whose selection the agreement made provision, and when so valued stock of the corporation was to be issued to each subscriber in an amount equaling the appraised value of the lands contributed by him or her to the enterprise. The aggregate of the lands thus to be conveyed was to constitute the capital of the corporation, and the aggregate of the valuations was to constitute and determine the amount of the capital stock. The agreement, as averred, makes no provision for money subscriptions of stock, and there is no averment that the agreement is in writing. The charge of the bill is that "Amanda J. Knox and Wm. E. Knox, her husband," were and are parties to the agreement.

One of the grounds of demurrer is that the bill fails to aver that said agreement was in writing, and signed by the alleged parties to the contract. If this question were raised under what is known as the "statute of frauds," (Code 1886, § 1732,) the question could not be raised on demurrer, unless the bill had shown that the contract was simply oral, (Bromberg v. Heyer, 69 Ala. 25; Phillips v. Adams, 70 Ala. 373.) The question, however, must be determined under the "Act to define the rights and liabilities of husband and wife," approved February 28, 1887, (Sess. Acts. 80; Code 1886, §§ 2346, 2348.) That statute does not clothe the wife with unlimited power to contract. It is only in exceptional cases that the wife can contract, without the consent or concurrence of her husband; and, if the contract be a conveyance of realty, the contract must be in writing, signed by her, and "the assent and concurrence of the husband be manifested by his joining in the alienation." Code 1886, §§ 2346, 2348. This ground of demurrer ought to have been sustained.

Another ground of demurrer questions the power of a married woman to make a binding executory contract for the sale of land, even "with the assent or concurrence of the husband expressed in writing." Code 1886, § 2346. We confess that this question is not free from difficulty. In section 2348 of the Code it is provided that the wife "cannot alienate her lands, or any interest therein, without the assent and concurrence of the husband; the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land." There is difficulty in carrying this provision into effect by coercive measures. On the other hand, if she cannot make a binding, enforceable, executory contract for the sale of her lands, "or any interest therein," then the statute has failed to endow her with the extent of power its spirit clearly indicates. It is manifest from the general scope of the statutory provisions that, with the exception of the express limitations placed on the wife's power of alienation, and on her power to contract and be contracted with, the statute intended to clothe her with absolute dominion over her property and personal earnings. She "has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of the husband expressed in writing." Code, § 2346. How can this clause have its legitimate effect, if the husband or wife, either or both, afterwards, with or without reason; refuse to execute a conveyance? The principle contended for would limit the wife's power to dispose of her lands, "or any interest therein," to completely executed conveyances, and thus deny to her half the powers ordinarily exercised by femes sole. We hold that an agreement to sell or to buy, executed by a married woman in writing, with the assent or concurrence of the husband expressed in writing, is binding to the same extent as if she were sole, and enforceable by all the remedies applicable to persons sui juris.

A graver question remains to be considered. At the time this agreement was entered into the Childersburg Land Company was not incorporated. An agreement to take shares in a corporation to be afterwards formed, while it may be, and often is, a binding contract, for the breach of which an action

may be maintained, is, by force of the mere agreement, in no sense a subscription of stock. Something more must be done before it can be affirmed that the subscription is a completed contract. Till a charter is obtained or incorporation otherwise perfected, such agreement is a mere offer, or it is an option, revocable or not as the nature of the agreement may determine. The terms of the offer, and the consideration it rests on, may render it binding and irrevocable; or a failure to withdraw such offer, even when in its nature it is revocable, until it has been accepted by actual incorporation, may so bind the offerer that he cannot afterwards withdraw it. When it rests on a valuable consideration, such as a promise for a promise, then, as a rule, it becomes an irrevocable option, provided incorporation according to the terms of the offer is perfected within a reasonable time. This would constitute the offerer in substance a stockholder. So, if an offer, which has no valuable consideration to rest on, be permitted to stand until it is accepted by incorporation according to its terms, this, it seems, would be an irrevocable subscription of stock. 1 Mor. Priv. Corp. § 47 et seq; Music Hall Co. v. Carey, 116 Mass. 471; Road Co. v. Lancaster, 79 Ky. 552; Land Co. v. Aldrich, 86 Ill. 504; Publishing Co. v. Jack, 6 Pac. Rep. 20; Ferry Co. v. Balch, 8 Gray, 303; 2 Wat. Corp. § 184; 1 Mor. Priv. Corp. § 128.

To authorize the application of this principle, however, the corporation, both in its frame and objects, must correspond with the terms of the agree ment. If there be a material departure in the character or purpose of the corporation from that which was contemplated in the agreement or offer, this absolves from all obligation to comply, unless the party sought to be charged has agreed to the charge, or has done some act by which he estopped himself from setting it up as a defense. So if, between the time of the agreement and the grant of the charter, the law be so changed as that the objects of the agreement as made cannot be carried into effect, this destroys the obligation. No one can be sued for the breach of an agreement the observance of which would be a violation of the law. 2 Wat. Corp. § 178; Mercer Co. v. Railroad Co., 27 Pa. St. 389; Thrasher v. Railroad Co., 25 Ill. 393.

It will be remembered that the agreement which this bill seeks to enforce was entered into May, 1887. At that time stock in such corporation could be made payable "in money, or in labor or property at its money value." Code 1876, § 1805. The charter or act of incorporation of the Childersburg Land Company was applied for and obtained in January, 1888. The Code of 1886 became the law of the state, December 25, 1887. By that Code, § 1662, it was declared that "all subscriptions to or for the capital stock [of corporations like the present one] must be payable in money." True, it was added, that "the commissioners may receive subscriptions payable in money, the subscriber having the privilege of discharging the same by the rendition of stipulated necessary services, or the performance of stipulated necessary labor for the corporation, at the reasonable value of such services or labor, or in property at the reasonable value thereof, [such as] the corporation has capacity to acquire and hold." One difference between the two systems is that by the latter statute, requiring money subscriptions, the exact amount of the capital stock subscribed can be known; by the former, it depended on the value of the services or property, to be ascertained afterwards. Under the one system, the subscriptions per se show the amount and value of the stock taken, and furnish a basis for incorporation. Code 1886, § 1660. Under the other, they would not. The one may be, and generally is, a completed contract of subscription. The other is, at most, an agreement to subscribe.

We need not, however, enter upon an inquiry as to reasons for the change. Enough for us that the legislature made it, and we have no option but to obey its will. And the fact that the agreement to form and incorporate the company was entered into before the law was changed can exert no influence in the decision of the question we are discussing. Until incorpora

tion was applied for and obtained, the agreement was, at most, an unaccepted offer. Before the acceptance, or attempt to accept, the offer had become illegal by force of the statute, and the power to accept was thereby taken away. The fifth and sixth additional grounds of demurrer ought to have been sustained. Reversed and remanded.

DORGAN et al. v. WEEKS et al.

(Supreme Court of Alabama. March 1, 1889.)

1. Deed-DESCRIPTION-PAROL EVIDENCE IN AID OF.

A deed, after reciting that it was made at Fish river, in the province of West Florida, described the land as "a certain tract of land being and lying at aforesaid place of Fish river, province aforesaid, commonly known as Ward's Old Place,' beginning at a creek which empties itself into the said Fish river, and known by the name of 'Alligator Creek;' thence south to a rock fronting on the bay of Mobile, calculating in said tract superficies of 1,000 acres, or thereabouts." Held, that the description was not so indefinite and uncertain as to exclude evidence of extrinsic facts to identify the land.1

2. SAME.

The settled rule is that a deed will not be pronounced void for uncertainty of description, if by the aid of parol evidence of extrinsic facts the land intended to be conveyed can be located.

3. TRIAL-PROVINCE OF COURT AND JURY.

Where there is a substantial conflict in the evidence, the trial court properly refuses to take the question involved from the jury.

Appeal from circuit court, Baldwin county; W. E. CLARKE, Judge.

Statutory action in the nature of ejectment, brought by Edward Dorgan et al. against George W. Weeks et al. Verdict and judgment for defendants, and plaintiffs appeal.

Pillans, Torrey & Hanaw, for appellants. D. C. & W. S. Anderson, for appellees.

CLOPTON, J. The defendants, in order to establish their title to the land sued for, offered in evidence a deed made by Henry Bandin, January 1, 1809, to Nicholas Weeks, their ancestor. The plaintiffs objected to the introduction in evidence of the deed, the specified grounds of objection being that it was void for uncertainty in the description of the subject of conveyance, and that it did not appear from the description itself that it included or covered any part of the land sued for. The court overruled the objection, observing that the defendants might show by parol evidence that the land was included in the description. After reciting that it was made at Fish river, in the province of West Florida, and in consideration of $1,000, the deed describes the land as "a certain tract of land being and lying at aforesaid place of Fish river, province aforesaid, commonly known as Ward's Old Place,' beginning at a creek which empties itself into the said Fish river, and known by the name of Alligator Creek;' thence south to a rock fronting on the bay of Mobile, calculating in said tract a superficies of one thousand acres, or thereabouts." What indefiniteness and uncertainty of description of the property intended to be conveyed is sufficient to render a conveyance void has been so repeatedly considered by this court, that after the numerous decisions respecting it, the test should now be regarded as settled. A deed will not be declared void on its face, unless it is apparent, from the generality and imperfection of the description, that the land cannot be identified by extrinsic evidence. An imperfect description may be rendered certain by parol evidence of ex

'Respecting the admissibility of parol evidence to explain descriptions in deeds, sce Davidson v. Arledge, (N. C.) 2 S. E. Rep. 378, and note; Farley v. Deslande, (Tex.) 6 S. W. Rep. 786; Coker v. Roberts, (Tex.) 9 S. W. Rep. 665, and note.

planatory and identifying facts. Gaston v. Weir, 84 Ala. 193, 4 South. Rep. 258; Meyer v. Mitchell, 75 Ala. 475; Angel v. Simpson, 85 Ala. 53, 3 South. Rep. 758; O'Neal v. Seixas, 85 Ala. 80, 4 South. Rep. 745; Black v. Coke Co., 85 Ala. 504, ante, 89. The deed will be sustained if it is practicable to ascertain and identify the subject of conveyance by the aid of parol evidence. The deed in question not only designates the land as the tract commonly known as "Ward's Old Place," but also as bounded on the east by a line commencing at Alligator creek, a natural boundary, and running thence south to a rock fronting Mobile bay. This description necessarily constitutes the creek the northern extremity, Mobile bay the western boundary, and the line running southward the eastern boundary. From this description, a competent surveyor, without much difficulty, could locate the land. Deeds containing descriptions more general and indefinite have been sustained. Driggers v. Cassady, 71 Ala. 529; Tranum v. Wilkinson, 81 Ala. 408, 1 South. Rep. 201; Smith v. Dean, 15 Neb. 432, 19 N. W. Rep. 642; 2 Devl. Deeds, § 1012. The settled rule is that a deed will not be pronounced void for uncertainty of description if by the aid of parol evidence of extrinsic facts the land intended to be conveyed can be located. Black v. Coke Co., 85 Ala. 504, ante, 89. It is admitted that there is a tract of land known as the "Bandin Tract," and a tract known as the "Ward Tract," the latter bounded on the west by Mobile bay and Weeks' bay, and adjoining the Bandin tract. Both tracts were formerly owned by Henry Bandin, the grantor of Weeks. The real point of contention is whether the land sued for constitutes a part of the Bandin or of the Ward tract. As relevant to this contention, both parties introduced parol evidence. After all the evidence was introduced, the plaintiffs moved to exclude from the jury the deed to Nicholas Weeks on the ground of uncertainty of description, and on the further ground that the parol evidence failed to show that the land sued for was included in the deed. The extrinsic evidence on the part of defendants tended to show that the "Ward's Old Place" was well known, and that old marks, made by surveyors, indicated the boundaries. There was further evidence tending to show that the place of beginning, as stated in the deed, is at the head of Alligator creek, or bayou; that the Bandin tract only included the small portion of the land sued for north of the bayou; and that the defendants and their ancestors had claimed and been in adverse possession of the land sued for as a part of the Ward tract, for the past 40 or 50 years. There was conflicting evidence on the part of the plaintiffs. Had the court granted the motion, and excluded the evidence from the jury, the ruling would have been the equivalent of passing upon the effect of the evidence, withdrawing it from the consideration of the jury, and of an affirmative charge in favor of the plaintiff. It is manifest that the evidence on the part of the defendants, whether slight or otherwise is immaterial, tended to show that the land sued for was included in the Ward tract. The conflict in the parol evidence made a question peculiarly for the jury, to whom the court properly submitted its determination.

Affirmed.

MOUNT v. STEWART.
SAME v. INGRAM.

(Supreme Court of Alabama. March 1, 1889.)

1. TRIAL-SETTING CASES FOR TRIAL-WAIVER OF OBJECTION.

Under Acts Ala. 1886-87, p. 161, (Code 1886, p. 225, note,) providing that the first week of the term of the circuit court of Calhoun county shall be devoted to civil, and the second and so much of the third as is necessary to criminal, business, and that a civil case "may be set down for trial" during the third week, if not sooner disposed of, judgment by nil dicit may be rendered during the third week in an action in which the defendant withdraws his pleas, though no order setting the case for trial has been made; the withdrawal of the pleas being a waiver of the objection.

2. APPEAL LIABILITY ON APPEAL-BONDS-INSOLVENT PRINCIPAL.

Code Ala. 1886, § 2251, providing that, if a judgment is rendered against an estate shown to have been declared insolvent, an order shall be entered that no execution shall issue thereon, but the same shall be certified to the probate court, does not prevent judgment being rendered and execution being issued thereon against the sureties on a bond taken on an appeal by the administratrix to the circuit court, from a judgment rendered by a justice of the peace; the trial in such case being de novo, and the condition of the bond being to pay such judgment as may be rendered against the appellant.

8. SAME-Costs.

In such case, on affirmance of the judgment of the justice, the recovery against the sureties includes the costs of both courts, such being provided by Code Ala. 1886, § 3410.

Appeals from circuit court, Calhoun county; JOHN B. TALLY, Judge. These two cases are identical, with the exception of the names of the defendants, and the amounts claimed in each case. They were submitted together, and one opinion written for both. Both of the cases originated in the justice of the peace court, and were brought against Mrs. Mary A. Mount, as administratrix of D. V. Heifner, deceased, to collect an indebtedness alleged to be due from her intestate. Judgment was rendered against the said administratrix in favor of the plaintiffs. The administratrix appealed from this judgment in the justice's court, and gave the appeal-bond required by statute, taking her appeal to the circuit court of the county. Pending these appeals in the circuit court, the estate of the said Heifner was reported to the probate court as being insolvent, and was so declared by the probate court; whereupon the insolvency of the said estate was suggested by way of defense to the action against the administratrix. On the trial of the causes, during the third week of the circuit court of Calhoun county, under the circumstances, as shown by the opinion of this court, the defendant, the administratrix, filed other pleas to the complaint of the plaintiffs. Upon these facts, and those set out in the opinion, the judgment entry recites: "Came the parties by attorney, and the defendant withdraws her pleas heretofore filed in the cause, and says nothing in bar or preclusion of plaintiff's demand. It is therefore considered by the court that plaintiff recover of defendant as administratrix of the estate of D. V. Heifner, deceased, and Eugene B. Hogan and J. H. Busby, her sureties on her appeal-bond from justice's court, [here follows amount of recovery and costs,] * * for which let execution issue against the said sureties; * and it having been shown to the court that the estate of the said D. V. Heifner, deceased, has been declared insolvent in the probate court of Calhoun county, it is ordered that no execution issue on this judgment against said administratrix of said estate, but that the same be certified to the probate court of Calhoun county." The judgment entry in both cases is identically the same. The administratrix appeals in both cases, and assigns the judgment in both cases as error, upon the grounds that the same was rendered during the third week of the said circuit court, without an order from the presiding judge setting a day of the third week; and also for the reason that the insolvency of the estate of the administratrix' intestate had been suggested to the court; and upon the further ground that execution should not have been ordered to issue against the sureties of the administratrix.

* **

*

Caldwell & Humes and Caldwell & Johnston, for appellant. E.H. Hanna, for appellees.

SOMERVILLE, J. 1. The judgment appealed from is one taken against the appellant nil dicit, on March 9, 1888, during the third week of the term of the Calhoun circuit court. It is provided by the act approved February 28, 1887, (Acts 1886-87, p. 161,) that the first week of said circuit court shall be devoted to the trial of civil cases, and the second week, with so much of the third week as may be necessary, to the trial of criminal cases: "provided," it is

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