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The suits at law brought on these policies by Mrs. Raden's attorneys are clearly shown to have been instituted under a mistake of fact. Smith led these attorneys to believe that Langley was the agent of their client, and that the notice of cancellation given, and the return premium paid to him, effected a rescission of the policies in the defendant companies,-the Niagara Fire and the Hamburg-Bremen Insurance Companies. These suits cannot, for this reason, operate as a ratification by Mrs. Raden of the acceptance of the new policies, and as an intentional abandonment of her vested rights under the poliicies in existence when the loss occurred.

Our judgment is, that the chancellor did not err in holding the policies here in controversy to be binding on the insurers, and that his decree granting the relief prayed is free from error, and must be affirmed.

GARDNER V. LANFORD et al.

(Supreme Court of Alabama. April 29, 1889.)

EXECUTION-REDEMPTION-EMBLEMENTS.

Tenants by the year under a purchaser of land at sheriff's sale are entitled to the growing crops on redemption by the judgment debtor.

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

Bill by A. V. Gardner against R. H. Lanford and others, to redeem certain land from execution sale. A demurrer to the bill was sustained in part, and complainant appeals.

Watts & Son and S. W. John, for appellant. White & White, for appellees.

MCCLELLAN, J. Appellant's lands were sold under execution on September 27, 1886, and bought by appellee Lanford. A part of the land being in the possession of the purchaser in 1888, he rented it for that year to appellees Savel and King, who entered thereon as his tenants, cultivated the land, and had a valuable crop outstanding on it on the 24th day of September, 1888, at which time a tender and offer to redeem was made by appellant, which was declined by Lanford, and to effectuate which the bill in this case was filed. The bill contains, besides the usual allegations for redemption, other averments which set up a claim to the outstanding crops, and makes a case, on the assumption of the soundness of this claim, for an injunction to prevent the gathering and removal of the crops by the defendants. The injunction was issued in accordance with the prayer of the bill, for this and other purposes not important to consider here, and afterwards, by agreement of parties, a receiver was appointed for the crops. Demurrers were interposed to the bill generally for want of equity, and specially to those parts of it which asserted complainant's right to the crops, and sought an injunction with respect to them. The cause being submitted on the bill and demurrers, the chancellor overruled those grounds of objections which went to the general equity of the bill, and sustained the demurrers which set up the invalidity of complainant's claim to the crops. The decree in this last particular is assigned

as error.

The one question presented by the record is whether the tenant of a purchaser at execution sale, or the debtor, who exercises the statutory right of redemption, is entitled to the crops growing on the lands at the time of redemption. The solution of this question depends, in our judgment, on the character of the tenancy of Ford and King. There of course can be no doubt that Lanford acquired the entire estate in these lands by the sale and conveyance of the sheriff. That which was left in the judgment debtor was not property, but a mere right, by the exercise of which, in the mode pointed

out by the statute, he could revest the property in himself,-a privilege which he might or might not avail himself of, and, failing to exercise within the statutory limits of its existence, he forever lost. The rights of Lanford in the land within the redemption period were precisely the same as they would. have been after its expiration, except that until the time had elapsed his title was subject to the privilege of purchase by the debtor or those claiming through him, and these rights embraced all that attend upon the ownership; among others, the right to the incomes and profits arising from the occupation of the land, and the right to lease it, and to receive rents. He did lease it for the year 1888. His lessees were entitled to hold for that year subject to a contingency which might terminate his estate and their tenancy before the end of the term. The contingency happened, the estate fell, and with it the tenancy terminated. It needs no argument to demonstrate that the term of the lessees, contingent from its inception on the exercise of the statutory privilege of redemption by the debtor,-the uncertain act of a third party,— was itself uncertain, and, if the tender and offer to redeem were made in compliance with the law, was terminated at a time and in a manner which in legal contemplation was unexpected to the lessor and lessees. In such casesthe rule is universal that the tenant is entitled to emblements, and, while his tenancy is at an end, he still has the rights of ingress, egress, and regress, for the purpose of reaping what he has sown. Conceding the manifest uncertainty of the tenants' term, the authorities are uniform in support of the conclusion we have reached. 2 Wait, Act. & Def. 221-224; 4 Wait, Act. & Def. 252, 253; 1 Washb. Real Prop. 132; Tied. Real Prop. § 71; Weems v. Bryan, 21 Ala. 303; Price v. Pickett, Id. 741.

The result thus attained is not inconsistent with any adjudged case or recognized text which has been cited by counsel. Authorities are referred to which hold that the redemption eo instanti reinvests the title in the debtor. There can be no doubt about the correctness of that proposition, but, so far as its effect on the question involved here is concerned, it but furnishes the predicate the determination of the estates of the purchaser and his lessees in the land-upon which the doctrine of the tenants' subsequent right to emblements depends. The argument that the tenants in this cause should notbe allowed emblements because Lanford would not have been entitled to them had he cultivated the land himself would apply with equal force to all cases in which the lessee's term is defeated by the lapse of the lessor's title through the occurrence of an unforeseen event, to the emasculation of the salutary doctrine, which has existed since the days of feudalism, that whenever a tenancy, other than at sufferance, is, from the first, of uncertain duration, and is unexpectedly terminated without fault of the tenant, he is entitled to emblements.

It is settled in this state that rents which the purchaser has received may be set off against his claim for permanent improvements; and doubtless rents which he had reserved, but which did not mature until after redemption, would, on general principles, belong to the redemptioner. It would be to the last degree inequitable to allow the redemptioner, on the one hand, to set off the purchaser's claim for improvements with the rents he had received from the tenants, or to receive such rents if they fall due after redemption, and, on the other, to take from these tenants the crops grown on lands, the rent for which he had either received, or had the benefit of, in his settlementwith their landlord.

The effect of that part of the decree which is assigned as error was to deny the complainant's right, under these circumstances, to the emblements, and it is affirmed.

END OF VOLUME 5.

INDEX.

NOTE. A star (*) indicates that the case referred to is annotated.

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3. But although there has been a final ad-
justment of mutual demands, and a balance

Plea in abatement, see Criminal Law, 6; struck, a recovery cannot be had upon an ac-
Pleading, 1.

Another action pending.

1. As the power of the probate court is in-
adequate to compensate for inequalities in par-
tition, or to take an account of rents, or to
provide for relieving the land of incum-
brances, or to adjust and equalize advance-
ments, the pendency of proceedings in it for
partition is no objection to a subsequent bill
in equity for the same purpose.-Marshall v.
Marshall, (Ala.) 475.

2. The lands being situated in several coun-
ties, while the probate court has jurisdiction
in one only, the pendency of such proceedings
would not be good ground of demurrer to the
bill in equity, as such demurrer goes to the
whole bill.-Iả.

Abduction.

count stated unless the amount of such bal-
ance is shown.-Id.

4. Where only one or two items of an ac-
count, consisting of money, are objected to,
the items not objected to will be considered
correct.-Id.

Impeachment.

5. An account stated is open to impeach-
ment on account of fraud or mistake.-Id.

Acknowledgment.

Of chattel mortgages, see Chattel Mortgages,
6, 7.

debt, see Limitation of Actions, 12.

ACTION.

Enticing away servant, see Master and Ser- Abatement of, see Abatement and Revival.
vant, 1.

Accomplice.

Evidence of, see Criminal Law, 26–28.

Accord and Satisfaction.
See Compromise.

Account.

See Account Stated.

Of executors, etc., see Executors and Ad-
ministrators, 2-6.

guardian, see Guardian and Ward, 4.
Opening and surcharging, see Equity, 13.

ACCOUNT STATED.

What constitutes.

1. Where an account against a party is ren-
dered, showing the amount due, and is ac-
knowledged to be correct, it is sufficient to
constitute an account stated, though such par-
ty has counter-claims which are not deducted.
-Ware v. Manning, (Ala.) 682.

2. Where parties meet to look over each
other's accounts, and the correctness of the
items comprising the mutual demands is ad-
mitted, it is not essential to an account stated
that one account should be subtracted from
the other.-Id.

v.5so.-56

Against state, see States and State Officers,

1-4.

By and against husband and wife, see Hus-
band and Wife, 25, 26.

partnership, see Partnership, 6, 7.
bailee, see Bailment.

executors, etc., see Executors and Ad-
ministrators, 21, 22.

For breach of covenant, see Covenants, 4-7.
libel, see Libel and Slander.

negligence, see Carriers, 2-10; Horse and
Street Railroads, 4-6; Master and Serv-
ant, 2-5; Railroad Companies, 8-24.
price, see Sale, 7-10.

Limitation of, see Limitation of Actions.
On bills and notes, see Negotiable Instru-
ments, 7-9.

bonds, pleading, see Bonds, 1-3.
contracts, see Contracts, 11-17.

injunction bonds, see Injunction, 8-11.
insurance policies, see Insurance, 15-18.
judgments, see Judgment, 9.
replevin bonds, see Replevin, 3, 4.

sheriffs' bonds, see Sheriffs and Consta-
bles, 3-9.

Particular forms, see Assumpsit; Ejectment;
Partition; Replevin; Trespass; Trover
and Conversion.
Parties to, see Parties.
Pleading, see Pleading.

Practice, see Practice in Civil Cases.
Venue of, see Venue in Civil Cases.
To set aside tax-sale, see Taxation, 3.
(881)

Separate claims-Jurisdiction.

1. A landlord may sue separately for each
year's crops grown on the demised premises,
and sold to defendant by the tenant, who
holds under a separate contract for each year,
and fails to pay the rent, and a justice of the
peace has jurisdiction, where the amount in-
volved in each suit is within it, though the
whole claim exceeds his jurisdiction.-McLen-
don v. Pass, (Miss.) 234.
Consolidation.

2275 and 2440, requiring that a title to effect a
transfer must be in writing.-good faith and
possession alone are not sufficient to acquire
immovable property by the prescription of 10
years.-Beer v. Leonard, (Lȧ.) 257.
Color of title.

2. Proceedings for condemnation of land in-
stituted by a railroad company in the commis-
sioners' court, even though invalid for irregu
larities of procedure, constituted color of title,
under which the company could adversely

2. Two actions pending in the same court behold the premises.-Mobile & G. R. Co. v.
tween the same parties, and each based upon Cogsbill, (Ala.) 188.*
matters ex contractu, are properly consoli- Evidence.
dated, especially when done with consent of
the parties.-Birmingham Flooring Mills v.
Wilder, (Ala.) 307.

Adjoining Land-Owners.

See Fences.

3. In ejectment, there was evidence that S.
took actual possession as early as 1852, and
cultivated the land until 1871; that he paid the
taxes and exercised acts of ownership until
1880, when he sold to M.; and that M. then ex-
ercised acts of ownership until he sold to de
fendant, who took possession and exercised
acts of ownership up to the time of trial.

Diversion of surface water, see Surface Held, that the evidence warranted the sub-

Water.

Adjournment.

Of court by judge, see Judge, 2.

Administration.

See Executors and Administrators.

ADULTERY.

Ground for divorce, see Divorce, 2, 3.
What constitutes.

1. On a trial for living in adultery, under
Code Ala. 1886, § 4012, the jury were properly
instructed that occasional acts of adultery do
not make out the offense; but if there was
adulterous intercourse, and such a condition
of the minds of the parties that, when oppor-
tunity offered, the act would be repeated, de- |
fendant was guilty; and that this condition
makes a living in adultery.-Bodifield v. State,
(Aia.) 559.
Evidence.

2. They were also properly instructed that
they might look to any evidence of the con-
duct of defendant and his alleged paramour,
showing that they had sexual intercourse, or
lived together in adultery, in 1895 or 1886, to
explain their conduct during the time covered
by the indictment, viz., from September 29,
1886, to September 29, 1887.-Id.

ADVERSE POSSESSION.
Bill to set aside deed, laches, see Equity,
14-16.

Prescription of ten years.

mission to the jury of the question of adverse
holding, its connection and continuity.-Black
v. Pratt Coal & Coke Co., (Ala.) 89.

4. Where defendant in ejectment relies only
on adverse possession, it may be shown that
the continuity of his possession was broken by
dispossession under the judgment of a court
of competent jurisdiction, in an action of un-
lawful detainer.-Bishop v. Truitt, (Ala.) 154.*

5. Correspondence and transactions between
a grantor and the officers of the grantee, a
railroad company, occurring before execution
of the conveyance and covenants, may be ad-
mitted to prove the grantee's permissive oc-
cupation, and to rebut the idea of adverse
possession.-Mobile & M. Ry. Co. v. Gilmer,
(Ala.) 138.

Instruction.

6. Where, in ejectment, both parties claimed
through one W., and it was incumbent on
plaintiff, who claimed title by adverse posses-
sion, to show a disavowal by his grantor of
W.'s title, and that notice of such disclaimer
was brought to W., it was error for the court
to charge, without reference to such dis-
claimer and notice, that if plaintiff, and those
under whom he acquired possession, had, for
the statutory period before suit, been in act-
ual, open possession, under claim of title, this
would authorize a verdict for plaintiff, unless
defendant had shown a better title.—Bishop v.
Truitt, (Ala.) 154.

Affidavit.

For taking deposition, see Deposition, 3, 4.
Agency.

See Principal and Agent.

Agricultural Department.

1. Under Civil Code La, art. 3478, providing
that he who acquires an immovable in good
faith, and by a just title prescribes for it in 10
years, and article 3479, providing that to ac-
quire ownership by such prescription one con-
dition shall be a title which shall be legal and
sufficient to transfer the property, and articles Of homestead, see Homestead, 1

Public printing for, see Public Printer.
Allotments.

ALTERATION OF INSTRU-
MENTS.

Pleading—Burden of proof.

Jurisdictional amount.

5. Where the pleadings contain a specific
allegation stating definitely the value of the
object in dispute, and the record contains
In detinue based on a chattel mortgage exe- nothing in contradiction of such allegation, it
will be held as conclusive on the question of
cuted by defendant to plaintiff, a plea that an
alteration was made in the amount of the jurisdiction, and cannot be contradicted for
mortgage debt as stated in the instrument by the first time by ex parte affidavits in this
increasing it to a certain amount, and by add-court.-Webb v. Hoth, (La.) 536.
ing the name of a mortgagor, after the instru- 6. Where, on appeal by an executor from a
ment was executed, without defendant's judgment maintaining an opposition to his ac-
knowledge or consent, is good. Such plea shown by the account for distribution exceed
count, it appears that the succession funds
implies that the alteration was after delivery,
and while in plaintiff's custody. It need not $2,000, the supreme court of Louisiana has
allege that the alteration was made by plain- jurisdiction, whatever be the amount claimed
- Succession of Cassidy,
tiff, or with his knowledge or conscut, but the by the opponent.
burden is on him to explain the alteration. (La.) 292.
Hill v. Nelms, (Ala.) 796.*

Ambiguity.

-

7. Where a party resists the payment of a
tax on the grounds of payment, of illegality in
the assessment, or of the mode of levy, and of
other irregularities involving the validity of
the tax, the amount of the tax claimed, and

In deed, parol evidence to explain, see Deed, not the value of the property seized therefor,

3, 4.

Amendment.

Of pleadings, see Pleading, 9-11.

Animals.

is the matter of dispute. In such cases, if the
amount of the tax does not exceed $2,000 the
supreme court has no jurisdiction.-Johnson
v. Cavanac, (La.) 61.

8. The supreme court of Louisiana has no
jurisdiction of a suit instituted to have an at-
torney's privilege for his fee for less than

Increase, lien of mortgage, see Chattel Mort- $2,000 recognized on a judgment exceeding
gages, 3.

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Who may appeal.

2. Where, on opposition to an executor's ac-
Count, the account has been amended by
placing the opponent therein as a creditor of
the succession, the executor, in his represent-
ative capacity, has an appealable interest in
the judgment on the opposition, and, if he
deems it unjust, has not only the right to ap-
peal, but it is his duty to do so.-Succession
of Cassidy, (La.) 292.

3. A defendant in attachment proceedings,
in which judgment has been rendered in
favor of plaintiff, cannot appeal from a judg-
ment in a suit instituted by an intervening
claimant.-McNeill v. Kyle, (Ala.) 461.
Appealable judgment.

4. Code Miss. § 2309, denying appeal from
judgments by confession or consent, does not
apply to justices' courts.-James v. Woods,
(Miss.) 106

that sum.-Young v. Duncan, (La.) 861.

Requisites-Bond.

9. Under Code Prac. La. art. 318, rule 29 of
the civil district court of Orleans, which pro-
vides that appeals from city courts must be
filed before the expiration of the tenth day
after the bond of appeal has been filed in the
city court, must be construed so as to exclude,
in the computation of the time, the day on
which the bond has been filed, as well as the
day on which the transcript is required to be
filed in the appellate court. There is no dif-
ference between rule 29 of the civil district
court and section 2093 of the Revised Statutes
of 1870.-State v. Ellis, (La.) 63.

10. Where an appeal at law is entered during
the term of the circuit court at which the
judgment appealed from was rendered, but
the appeal-bond is not given until after the
expiration of 30 days from the adjournment
of the term, the appeal will be dismissed.-
Brown v. Wheeler & Wilson Manuf'g Co.,
(Fla.) 673.

11. The fact that an appeal-bond, on appeal
from a justice, is executed and approved be-
fore rendition of the judgment appealed from
does not invalidate the bond. - James v.
Woods, (Miss.) 106.

12. Where an appeal-bond has been given
with security approved by the justice, appel-
lant should be allowed to give a new bond if
the first proves defective in any respect.-Id.
Practice Assignment of errors.

13. An assignment to the overruling of a
plea in abatement, which does not set out the
form of the plea, nor show upon what ground
it was overruled, cannot be considered.-Mor-
ris v. Beall, (Ala.) 252.

14. An appeal from a judgment will not be

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