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demands made in said suits and the pending suit. The judgment of the lower court overruling the exception was correct.

Defendant moved to compel plaintiffs to elect whether they would proceed on the demand to reform the policy, or on the policy itself. The motion was correctly overruled. There is no inconsistency in the alternative prayers of plaintiffs, and, if the allegations in a petition will warrant equitable relief, this court, under the well-recognized jurisprudence of the state, will grant it. Such is the prayer of plaintiffs in their petition. Civil Code, arts. 21, 1964, 1965.

Defendant answered, denying any liabilities on the part of the company; that the vessel was damaged, and the loss occasioned, by a violation of a prohibitory clause in the contract of insurance made between plaintiffs and defendant. The application for the policy of insurance was made on the 2d day of May, 1882, on the blank form furnished by the company, as follows: "To navigate the Gulf of Mexico, the Caribbean sea, and the Atlantic coast as far as Boston." In the body of the application, preceding the signature, in plain type, the following forms a part of the application: "This application is made and accepted subject to all other clauses and conditions in the policies of the company."

The clause and condition in the policy referred to, and which is the matter of contention in this case, is as follows: "Warranted by the assured not to use port or ports in Eastern Mexico, Texas, nor Yucatan, nor anchorage thereof, during the continuance of this insurance."

Plaintiffs' right to recover depends upon a construction of this last clause; whether or not it forms a part of the contract. They contend that it was well understood that the intent was for plaintiffs to navigate the Gulf of Mexico and Caribbean sea, to use the ports of Mexico and Texas without exception, and that said clause of warranty prohibiting the use of said ports should be stricken out. In order to obtain relief, it is incumbent upon plaintiffs to show that there is some conflict or inconsistency between the written and printed parts of the contract, and that the latter controls and conveys the intent of the parties to the contract, or that there was an error made by both in the contract, so that the intention of neither is expressed, or, if there was error on one side, it was the result of some artifice or fraud on the part of the other, or that the contract was created on the part of plaintiff on his construction of the intent and meaning, with the expressed and implied consent of defendant. The written part of the application forms a part of the policy, and is copied and incorporated in the policy, and thus the application and the policy form but one contract. The policy was delivered some 15 days after the application was made. The assured cannot plead ignorance of the clause in the policy. It was their duty to read the policy, so as to determine whether or not it was made in accordance with the application. The defendant company insures vessels navigating the seas, but has clauses in its policies excepting certain parts and localities from its risks. A person dealing with an insurance company ought at least to know the general course of its business, and, if he desires exceptions in policies to be avoided, he ought to state the fact in his application, and be willing to pay the premiums for the risk.

It is a maxim of the law that words referred to are considered as incorporated,―verba illata in esse videntur. And the same rule applies where a particular clause refers to another clause in the same instrument or to one disconnected from the instrument to which reference is made. The clause in the application for a policy of insurance on the Geary referred to a clause containing exceptions in the policy with reference to certain ports. This clause formed a part of the application, as though it had been written or printed in it: "To cover hull, apparel, etc., of steamer James A. Geary, to navigate the Gulf of Mexico, the Caribbean sea, and along the Atlantic coast, as high up as Boston; the assured not to use port or ports in eastern Mexico, Texas,

and Yucatan, nor exchange thereof, during the continuance of this insurance." Where there is no ambiguity requiring explanation in the language of a written contract, and the intent is plain and complete, no evidence will be admitted to give any other construction to it than that which is so plainly expressed. Civil Code, arts. 1945, 1949. Neither equity nor usage can be resorted to in order to enlarge or restrict that intent. Id. art. 1963. Authorities are cited by plaintiffs to show that the contract of insurance should be construed in the manner in which the assured understood it. This is undoubtedly true when the intent is doubtful, and is so expressed in articles 1956, 1957, Civil Code.

The evidence in the record does not convince us that the insurance company had any knowledge of the intention of the owner of the Geary to put her in trade between Galveston and Vera Cruz. There is some conflict in the testimony of Fourchy, the president of the company, and W M. Baker, the inspector, on the one side, and Wight, for plaintiffs, on the other. Fourchy and Baker deny all knowledge of any intent on part of plaintiffs to employ said vessel in commerce with any of the prohibited ports. They say, on the contrary, after her employment between Mobile and Havana she was to be used in the fruit trade with the Bahama islands. Pearl Wight says his firm was negotiating with the owners of the vessel to take a cargo of lumber for the M. C. R. R. to Tampico, and that he told Mr. Fourchy, when negotiating for the policy, that she might go to Tampico. There was no agreement and no contract for this proposed voyage. That nothing was said to Fourchy, the president of the company, about excepting Texas and Mexican ports from the prohibitions in the policy, is evident from Mr. Wight's answer to an interrogatory: "I think that the only thing that was talked about that I have any recollection of was about allowing her to run north; and this man stated that he might want to send her east for repairs; and that is why the prohibition clause was put in there." The fact that Galveston was the hailing port of the vessel is of very little consequence. A vessel may hail from a port, and be employed during her life in distant seas, and never again visit her home port.

Plaintiffs contend that the defendant company issued policies and paid losses on the Silver Wing and Day Break, in each of which may be found printed clauses, warranting against the use of Mexican and Texas ports, similar to the clause in the policy sued on. But the written applications and the written parts of the policy allowed the use of these ports. In the instant case there is no such permission asked in the application or granted in the policy. Evidence showing that the insurer and insured meant to make a certain contract, but by misconception of the effect of the language and terms in the policy defeated their intentions, makes a proper case for its reformation. The evidence in such case, however, must be clear. If there be a substantial doubt as to what was the statement of the applicant, or as to the fairness of his claim to have been mistaken, or the agreement of the parties, or a material conflict of testimony, the court will not aid the plaintiff. The affirmative is upon the plaintiff, and he must show what statement he made, and what the agreement was. May, Ins. § 566, p. 871.

The plaintiffs have failed to show that there is any ambiguity or doubt in the policy evidencing the contract, or that the intention of the parties was other than that expressed in the insurance contract, or that there is any contradiction between the printed and written clauses of the contract.

The judgment appealed from is therefore avoided, reversed, and annulled, and it is now ordered that the demand of plaintiffs be rejected, with costs. Rehearing refused.

ASHURST et al. v. LEHMAN et al.

(Supreme Court of Alabama. March 2, 1889.)

RECEIVER-APPOINTMENT-RIGHTS OF MORTGAGEES.

The lands included in a mortgage, which covered also the crops and other personalty, were incumbered by a prior mortgage to the extent of their value. The debt secured by the mortgage was past due, the mortgagor was insolvent, and refused to deliver the crops and other personalty to the mortgagee, alleging the existence of prior liens on the crops, and appropriated a portion of them to purposes other than payment of the mortgage debt. The crops were in danger of loss unless promptly taken into custody of the court, and the security without them was inadequate. Held, that a bill by mortgagee against mortgagor, averring those facts, showed a prima facie case for the appointment of a receiver, and good reason for failure to give notice of application therefor.

Appeal from chancery court, Tallapoosa county: S. K. MCSPADDEN, Judge. Bill by Lehman, Durr & Co. against R. T. Ashurst and others. Defendants appeal.

Watts & Son and John A. Terrell, for appellants.

CLOPTON, J. It has been said that the exercise of the power to appoint a receiver pendente lite is one of the most responsible duties which a court of equity is called on to perform, as its effect is to deprive the defendant of his possession before a final decree, which may work great and even irreparable injury, though the property taken into the custody of the court may be finally restored. The appointment rests largely in the discretion of the court, not an arbitrary or capricious, but a judicial, discretion, controlled by a consideration of the circumstances of each case, and the power should be exercised with great caution and circumspection. Actual fraud or imminent danger is not, in all cases, essential to the exercise of the power. There should, however, be a concurrence of two grounds,-a reasonable probability of success on the part of the complainant, and that the subject-matter in controversy is in danger. The remedy is preventive in its nature, and its purpose is the preservation of the subject-matter of litigation for the benefit of all the parties in interest, until their rights can be finally adjudicated. It does not affect the title, nor establish the rights of the parties. Such being the nature of the remedy, the appointment of a receiver is authorized when the party seeking the appointment shows, prima facie, a title reasonably free from doubt, or a lien upon the subject-matter of controversy to which he has a right to resort for the satisfaction of his claim, and that it is in danger of loss from waste, misconduct, or insolvency, if the defendant is permitted to retain the possession. Notice of the application for the appointment, and the officer to whom it will be submitted, must be given, or a good reason shown for the failure to give the same. Iron-Works Co. v. Foster, 54 Ala. 622; Micou v. Moses, 72 Ala. 439; Bard v. Bingham, 54 Ala. 463; Ex parte Walker, 25 Ala. 81; Code 1886, § 3534.

The allegations of the bill, which are verified, are not controverted. We must, therefore, on appeal, assume their truth. The relation of mortgagees and mortgagor exists between complainants and defendant. The mortgage conveys land, the crops grown during the current year, and other personal property, as security for a debt due by defendant to complainants. The lands are incumbered by a prior mortgage to the extent of their value. The claim of the complainants is past due. The bill avers that defendant has refused to deliver the crops and other personal property embraced in the mortgage, and claims that there are prior liens upon the crops. It also avers that the defendant has appropriated a portion of them to purposes other than the payment of complainants' debt; that defendant is insolvent; and that the crops are in danger of being lost or destroyed, unless they are promptly taken into

the custody of the court; and that the security is inadequate, unless they are preserved and applied to the satisfaction of complainants' debt.

The receivership was extended only to the crops. Considering the nature and character of the subject-matter of controversy, the facility with which the crops may be disposed of, their liability to waste or destruction, the necessity of their preservation and application to the mortgage debt, the insolvency of defendant, and his application of a part of the crops in disregard of the rights of complainants, we are of opinion that the bill makes a prima facie case for the appointment of a receiver, and shows a good reason for the failure to give notice of the application. Sims v. Adams, 78 Ala. 395.

Affirmed.

MOSELY v. MOSELY.

(Supreme Court of Alabama. March 2, 1889.)

1. TRUSTS-ARISING FROM PAYMENT OF PURCHASE MONEY-ENFORCEMENT. Where a purchaser of lands, unable to make the deferred payment, borrows for that purpose money from a third person, to whom he procures the title to be conveyed by his vendor, the third person agreeing to convey to the purchaser upon repayment of advances, the relation between the parties is that of vendor and vendee, and the remedy for the breach of the agreement is a bill, in the nature of a bill for specific performance, to enforce the trust, and not a bill to have the deed declared a mortgage.

2. SAME STATUTE OF FRAUDS.

Such an agreement is within the statute of frauds, (Code Ala. 1886, § 1845,) which provides that "no trust concerning lands, except such as results by implication or construction of law, can be created" except in writing. There being no averment that the deed to the third person was obtained by fraud or deceit, or that any was intended or practiced in making the agreement, the fact that he afterwards refused to convey is not sufficient to bring the case within the exception, as the fraud must have been the means of acquiring the title.

Appeal from chancery court, Morgan county; THOMAS COBBS, Chancellor. The original bill in this case was filed on the 8th of November, 1887, by Level Mosely, the appellee, against Tim Mosely, the appellant, and alleged, in substance, that in January, 1885, complainant bought a town lot in Decatur from M. C. Wade, at the agreed price of $100, paid part of the purchase money, entered into possession, and commenced the erection of valuable improvements; that in February, 1887, being unable to pay the balance of the purchase money, he applied to the defendant for assistance, "and succeeded in making satisfactory arrangements with him to get the money;" that the agreement between them was, in substance, that the defendant should advance the unpaid purchase money, and should receive from said Wade a conveyance of one-half of the lot, "which was to act as a mortgage, and nothing else," and complainant was to have the right to redeem on repayment of the money so advanced; that this arrangement was carried out, the parties going together to Wade, to whom the money was paid, and who then executed a deed conveying one-half of the lot to the defendant, and another deed conveying the other half to the complainant; that the complainant afterwards tendered to the defendant the amount of money so advanced for him, with interest, and "was surprised when defendant refused to accept the money, and informed him that he intended to hold said lot under said deed." The bill alleged, also, that the lot was a part of complainant's homestead, and that he was not bound, "legally or equitably, to refund said $50, borrowed from said respondent to pay the purchase money." The original bill prayed that Wade's deed to the defendant might be declared null and void, and canceled under the decree of the court; that “if complainant is, in the opinion of the court, bound to refund to respondent the money borrowed, he may be permitted to do so, and that it be made a condition of the decree of the court;" and for

other and further relief. A demurrer to the original bill was interposed, assigning 16 special causes or grounds of demurrer, and the demurrer was sustained generally. The bill was then amended by making a more specific allegation of the tender, and by praying that the conveyance be declared a mortgage, and the complainant be let in to redeem. The chancellor overruled a demurrer to the bill, as amended, and, on final hearing, on pleadings and proof, rendered a decree for the complainant, holding that he was entitled to redeem, and that the conveyance was intended only as a mortgage. The overruling of the demurrer to the amended bill, and the final decree, are now assigned here as error

E. W. Godbey and Sayre, Stringfellow & Le Grand, for appellant. S. T. Wert and T. N. McClellan, for respondent.

CLOPTON, J In January, 1885, appellee purchased of M. C. Wade a lot of land in the town of Decatur at the price of $100. He paid about one-half of the purchase money, and, being unable to pay the balance, made an arrangement with the appellant, about January 1, 1887, by which the latter agreed to pay the unpaid purchase money, and take a deed from Wade to one-half of the lot. The appellant paid Wade the balance due on the lot, and Wade executed to him a deed absolute in form. At this point the controversy between the parties arises. Appellee contends that the arrangement was that appellant should pay the unpaid purchase money, and take a deed as security for the repayment of the same; that the deed made by Wade was to operate as a mortgage, and appellant was to convey the property on being repaid. This appellant denies, and asserts that he purchased one-half of the lot absolutely, and that the deed was intended to be indefeasible. Appellee files the bill which prays that the deed be declared a mortgage, and that he be let in to redeem.

The first question is, what was the nature of the relation between complainant and defendant? The ruling in Micou v. Ashurst, 55 Ala. 607, answers this question. In that case, it was held that where a purchaser of lands, having paid part of the purchase money, and being unable to make the deferred payments, borrows for that purpose money from a third person, to whom he procures the legal title to be conveyed by his vendor, giving his notes for the money borrowed, and taking from him a bond conditioned to make titles on their payment, the relation between the parties is that of vendor and vendee. The deed made by Wade to defendant was intended to be absolute and indefeasible, not a security for a debt due by the grantor. Performance of the condition-the payment of the money advanced-would not inure to his benefit, or operate to reinvest him with his original estate, and would not have the effect to render the conveyance void, and restore the estate to the grantor or the legal title to the complainant. In such case, the remedy is not a bill to have the deed declared a mortgage, and to be let in to redeem. When the relation is that of vendor and vendee, the former, having taken, and retaining, the legal title as security for a debt, holds it in trust for the latter, and his remedy is a bill in the nature of a bill for specific performance of the contract, to compel the execution of the trust.

Such being the relation between the parties, defeating the right of the complainant to have the deed declared a mortgage, the next question is, will a court of equity enforce the contract, being verbal, and compel an execution of the trust on tender of the money advanced? This raises the question whether the agreement falls within the provision of the statute, which declares: "No trust concerning lands, except such as results by implication, or construction of law, or which may be transferred or extinguished by operation of law, can be created, unless by instrument in writing, signed by the party creating or declaring the same, or his agent or attorney, lawfully authorized thereto in writing." Code 1886, § 1845. An exception has been ingrafted

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