lence to the wife's person, attended with 2. The use of the word "appurtenances" in
danger to life or health, makes a prima facie a deed is not sufficient to show an intention
case for divorce, Code Ala. § 2324, permitting to create an easement, where none existed be
a divorce when the husband has committed fore.-Id.
actual violence on her person, attended with Obstruction-Equitable relief.
danger to life or health, or when from his
conduct there is reasonable apprehension of
such violence.-Farmer v. Farmer, (Ala.) 434.
Adultery-Condonation.

2. Adultery is condoned where no separa-
tion occurs for three months after knowledge
of it.-Id.

Evidence.

in a block owned by different persons, the en-
3. Where by a change in the uses of a hall
joyment of an easement of entrance to it

through the building of another owner has
become exceedingly oppressive to the latter,
and a right of way from necessity does not
exist, but another entrance can be used if the
owner of the servient estate obstruct the ease-

ment, equity will not interfere, but will leave
Bryde v. Sayre, (Ala.) 791.
complainants to their remedy at law.-Mo-
Conveyance-Implied grant.

3. In a suit by a wife for divorce, a recrim-
inatory charge of adultery is not established
by the husband's testimony to the contents
of an alleged intercepted letter, which, he
testifies, was purloined from him by the wife, 4. A way over an adjoining lot is an ease-
and destroyed, where a witness, to whom he ment to the enjoyment of which the act of the
showed the letter, denies the alleged incrim-party is essential, and is therefore not a “con-
inating statements.-Id.

Documents.

See Evidence, 10.

DOMICILE.

Change-Intent.

1. It is error to instruct the jury that if the
"husband of defendant removed into the state
of Alabama as a place of refuge, or to es-
cape arrest in the state of Georgia, and that
was his sole purpose, this would not give him
a domicile in Alabama," since the change of
domicile depends on the intent that the new
habitation shall be permanent or of indefinite
duration, and not on its purpose.-Young v.
Pollak, (Ala.) 279.

tinuous" easement; and, not being one of
necessity, does not pass by conveyance by the
common owner, under the doctrine of implied
grants.-ld.

EJECTMENT.

See, also, Adverse Possession.
Title to support.

1. Under Code Ala. 1886, § 2782, providing
that all certificates issued pursuant to any
act of congress, by any one authorized to is-
sue them, upon any warrant or order of sur-
vey or for any donation or pre-emption claim,
vest the legal title in the holder, and must be
received as evidence of such title, a receipt in
full, given by the receiver of the public
moneys for the entry of land under the fed-
2. An instruction that "if the jury believe vests a legal title sufficient to support an ac-
eral homestead laws, (Rev. St. U. S. § 2290,)
that W., after he came to Alabama in 1875 or tion of ejectment, or the corresponding stat
1876, returned to Georgia to remain perma-utory real action.-Case v. Edgeworth, (Ala.)
nently or for an indefinite length of time,
such return, with the intent as stated, would
be an abjuration of the state of Alabama," is
erroneous where the return was under arrest,
and the absence due to involuntary confine-
ment.-Id.

Drunkenness.

As a defense to homicide, see Homicide, 16.

Duress.

783.

possession of the land in controversy is not
2. A decree in chancery that defendant's
adverse to plaintiff's title estops him to deny
such title: and hence a subsequent convey-
ance of the land by plaintiff is valid, though
defendant is still in possession, and defeats
plaintiff's right to maintain ejectment.-
Brunson v. Morgan, (Ala.) 495.

By heirs against administrator.

3. Ejectment does not lie in behalf of an
Validity of contract made under, see Con- heir as against an administrator, to recover
tracts, 3.
possession of land to which the latter is en-
titled as an asset of the estate.-Barco v. Fen-
nell, (Fla.) 9.

Dying Declarations.

See Homicide, 21.

EASEMENTS.

See, also, Dedication.
Creation.

1. A right of way is an interest in lands,
and a grant thereof by parol is void, under
the statute of frauds.-Bonelli v. Blakemore,
(Miss.) 228.

4. Ejectment will lie in behalf of the heirs
against the administrator to recover posses-
sion of a rural homestead, where the land
occupied by intestate as such homestead at
the time of his death consisted of 160 acres
or less, or where prior to his death he has,
when actually occupying more than 160 acres,
filed a written declaration of his homestead
in the probate office of the county judge, un-
der act Fla. 1869, McClel. Dig. p. 531, § 11.—ld.

5. Where one or more of the heirs of an es-
tate is a minor, and the ancestor dies actu-
ally occupying as his homestead a tract of

rural land exceeding 160 acres, and not hav-ing that defendant had forgotten his convic-
ing filed a written designation of a part there- tion of petit larceny, which disqualified him,
of as his homestead, ejectment will not lie in or that he was advised that there was no rec-
behalf of such heirs, but the proper remedy ord of his conviction on the court dockets, and
for setting aside the homestead is by bill in voted under this advice, honestly believing he
equity, under Acts Fla. 1881, c. 3246, § 2, (Mc- had a lawful right to vote.-Gandy v. State,
Ciel. Dig. p. 166, § 54.)—Id.
(Ala.) 420.
Pleading.

Embezzlement.

6. In ejectment brought by the heirs of an
estate against the administrator, a special See Larceny, 4.
plea that plaintiffs claim title as heirs of in-
testate of defendant who is still administrator
of his estate which is still unsettled is bad on
demurrer.-Id.

7. The fact that defendant in ejectment
claims the absolute title to the premises, while
setting up as a defense only a possessory right
as administrator of an unsettled estate, in no
way affects the plaintiffs' right to recover as
heirs, and a replication setting up such facts
is bad on demurrer.-Id.

8. Under Code Miss. § 2483, a plea of not
guilty admits defendant's possession. De-
fendant interposed such a plea, and also the
special plea denying the fact of possession,
allowed by section 2486, which provides that
"in such case the title of the plaintiff shall be
admitted, and the only question on the trial
shall be in relation to the fact of possession."
Held, that the court should have directed one
or the other of the pleas to be stricken from
the files, even though no action was taken
by plaintiff, as no issue could be presented
while both pleas remained.-Powell v. Wat-
son, (Miss.) 513.
Evidence.

EMINENT DOMAIN.
Petition-Amount of land acquired.
1. Though a railroad company may, for cer-
tain purposes, acquire an easement in lands
beyond the limited right of way allowed by
statute such extra condemnation cannot be al-
lowed under a petition praying only for a right
of way, nor unless the petition specify the
purpose for which the excess is prayed, and to
what portion of the line it applies.-Brown v.
Rome & D. R. Co., (Ala.) 195.
Compensation.

2. Under Sess. Acts Ala. 1884-85, p. 223, relat-
ing to condemnation of land by defendant com-
pany, providing that if the owners of the lands
cannot agree with the company as to damages,
"or, in case such owner is an infant,
such value or damages shall be ascertained in
the manner directed by the general laws," a
previous attempt to agree on damages need
not be alleged nor proved in the case of lands
owned by an infant, though he has a guard-
ian.-Id.

9. Under Code Ala. 1886, § 2697, requiring
defendant in an action to recover real prop- should not order the damages to be paid to the
3. A decree in condemnation proceedings
erty to furnish "an abstract of title or titles guardian ad litem of an infant owner. It
on which he will rely for defense, "a defend- should be kept in court until the appointment
ant is not prevented from introducing deeds of a guardian, or until some one legally author-
which form no part of, and have no connec-ized appeared to claim it.-Id.
tion with, his own title, but which tend to
show the invalidity of plaintiff's title.-Rob-
bins v. Gilligan, (Ala.) 568.

10. A power of attorney authorized the mak-
ing of a deed to certain land, "also
they being the lands sold by H.," etc. Held,
that the blank did not render the power inad-
missible in evidence, and that, as it related to
part of the land in controversy, its relevancy
was not impaired by the fact that it did not
embrace the entire tract.-Potts v. Coleman,
(Ala.) 780.

Improvements.

11. One deriving title through a life-tenant,
whose interest is plainly shown by the title
papers, is not entitled to compensation from
the remainder-man for improvements.-Stew-
art v. Matheny, (Miss.) 387.

12. A remainder-man is not estopped by per-
mitting improvements to be made by one who
derives title through the life-tenant, without
giving notice of his rights, where there is
nothing to show any obligation to give notice.
-Id.

ELECTIONS AND VOTERS.
Violation of election laws.

EQUITY.

See, also, Fraudulent Conveyances; Injunc-
tion; Mortgages: Partition; Partnership;
Quieting Title, Receivers; Specific Per-
formance; Trusts.

Bill for discovery by creditors before judg-
ment, see Discovery, 1, 2.

to confirm tax-title, see Taxation, 5-7.
Jurisdiction in partition, see Partition, 2.
Relief against obstruction of easements, see
Easements, 3.

Suppression of deposition, see Deposition, 6.
Jurisdiction.

1. When equity has acquired jurisdiction to
reform writings it will retain it and grant full
relief.-Houston v. Faul, (Ala.) 433.
Reformation of deed.

2. When a mistake is made in the descrip-
tion of land in a deed and mortgage, equity
will reform the conveyances so as to make
them express the real agreements.-Id.

3. Where, in a mortgage of a homestead duly
acknowledged and executed, there is a mis-
take in the description of the land, equity will
It is no defense to the charge of illegal vot-reform the mortgage, where the quantity of

the land conveyed is not thereby increased.-
Wetherington v. Mason, (Ala.) 679.

4. On failure of a deed given by a wife, of
her separate estate, for a debt in part for the
family support, and in part contracted by the
husband, to correctly describe the land sold,
equity will reform it, on payment by the gran-
tee to the wife of the part of the consideration
composed of the husband's debt. - Conner v.
Armstrong, (Ala.) 449.

5. Where the vendor represented that the
tract sold contained about 25 acres more than
it really did contain, the mistake is so gross
that equity will afford the vendee relief by
abatement of the purchase price.-Hodges v.
Denny, (Ala.) 492.

6. D. mortgaged a tract of land to J., C. &
Co., misdescribing certain courses and dis-
tances. The mortgage was foreclosed, and
the land sold, the mortgagees being the pur-
chasers; the misdescription being carried
into the foreclosure proceedings and deed.
The purchasers conveyed the land, and there
were various conveyances of parts of the land
down to complainants. Held, that a court of
equity has power to correct the misdescription
in the mortgage, the decrees, and the deed,
so as to make it conform to the true intent of
the parties to the mortgage.-Greeley v. De
Cottes, (Fla.) 239.*

7. Where a bill filed against the heirs of a
mortgagor alleges a mistake in the description
of land described in the mortgage, and that
the mortgagor and mortgagees intended the
alleged true description, and that the mort-
gagees who purchased at a foreclosure sale
took possession of the land according to the
true description, and that he and those claim-
ing under him have since held possession ac-
cording to the true description, and that the
mistake has been but recently discovered, a
demurrer for want of equity should be over-
ruled.-Id.*

Rescission and cancellation of deed.
8. As a deed by husband and wife of her
separate estate, absolute in form, reciting a
valuable consideration, and purporting on its
face to conform to statutory requirements,
divests the wife of the legal title, it is error
to dismiss for want of equity a bill by her to
have the deed canceled as a cloud upon the
title to her separate estate, as she has no ad-
equate remedy at law.-Armstrong v. Conner,
(Ala.) 451.

11. The husband being entitled to half of the
personal estate of the wife on her death, that
sum is properly decreed to his administrator.
Id.

12. In a case free from fraud, equity will
not rescind a conveyance on account of a want
or defect of title, but will leave the purchaser
to his remedy at law, if he has not abandoned
or restored possession, unless its retention
is necessary to his reimbursement or indem-
nity.-Thompson v. Sheppard, (Ala.) 334.
Opening accounts-Surcharging.
13. Plaintiff's intestate agreed to assume
liability for advances to be made by defend-
ant to her and her father, for carrying on
farming. At the close of the year a settle-
ment was had, and a note and mortgage exe-
cuted by her for the balance due, on which
judgment was entered by consent. On a bill
filed by intestate in her life-time, in which
she conceded liability for advances made ac-
cording to the agreement, but sought to elim-
inate erroneous charges and usurious inter-
est, the judgment was annulled, because of
the fiduciary relation between intestate and
her father. Held, that, in the absence of al-
legations and proof of intentional fraud by de-
fendant, infecting the whole account, the ac-
count would not be opened, but leave would
be given to surcharge and falsify.-Moses v.
Noble, (Ala.) 181.

Laches.

14. A bill in equity to set aside a deed to
land, where there has been acquiescence in
an adverse possession for 10 years before suit,
is barred, under Code Ala. 1886, § 3419, unless
there are excusable circumstances taking the
case out of the operation of the statute.-
Scruggs v. Decatur Mineral & Land Co., (Ala.)
440.

15. A bill to set aside a deed alleged that S.,
the grantor, conveyed the property to a
daughter of his second wife by her first mar-
riage, in 1868; the deed reciting that a for-
mer deed, made in 1858, being lost during the
war, he executed this one in lieu thereof;
that the latter deed was recorded; that he,
after the war, and before making the deed of
1868, erected buildings thereon, and resided
there until the death of his wife, in 1876, with
his step-daughter, who was treated as one of
the family. There was no special averment
of acts of ownership by S. after the deed was
9. A conveyance by a married woman of her made. S. resided with his son in Mississippi,
separate estate to her husband and a son, from 1876, until his death, in 1882. Complain-
which is a nullity for want of joinder therein ants alleged undue influence on the part of the
by the husband, and which has not been pro- step-daughter, and their ignorance of any
bated as a will in the proper forum, cannot be fraud in the matter, until 1887,-one year be
upheld as such, when set out as a deed in a fore suit brought. No concealment of the
bill by an heir to set it aside, where defend-grantee's interest in the property was alleged.
ants assert that it is a will.-Trawick v. Da-
vis, (Ala.) 83.

10. In an action to set aside a conveyance by
a married woman of her separate property to
her husband and son, for want of joinder
therein by the husband, where defendants are
sons of the married woman, and allege a com-
promise with their sister, and a conveyance
by her to them of her interest in the property,
which are admitted by her, a decree of an in-
terest to her is erroneous.-Id.

Held, that there was no such excuse shown
for the delay in prosecution of the suit as to
bar the running of the statute.-Id.

16. In such case the defendants can avail
themselves of such defense by demurrer.
-Id.

Pleading.

17. An original bill claimed a resulting
trust in favor of complainant, averring that
her father furnished money for her benefit to

Best and secondary evidence.
4. A certified copy of a deed made in 1831,-State v. Simmons, (La.) 29.
and recorded on the day of its date, is admis-
sible in evidence, the presumption being that
it was properly acknowledged or proved, with
a proper certificate, and that the subscribing
witnesses are dead; and the original grantees
being dead, and the plaintiffs being their suc-
cessors, there is no presumption that they
have the original deed, and they need not ac-
count for the loss before introducing the copy.
-Allison v. Little, (Ala.) 221.*

tradicted by parol in a collateral proceeding.

12. Evidence of a contemporaneous or
agreement by the assignor of a contract of
purchase of land that, if the vendor should
fail to make a deed to the assignees, he would
return the consideration, and would guaranty
that "it would be all right," is inadmissible,
as changing the terms of the written assign-
ment.-Griel v. Lomax, (Ala.) 325.
explanation in the language of a written con-
13. Where there is no ambiguity requiring
tract, and the intent is plain and complete, no
evidence will be admitted to give any other
5. Interrogatories asking for the "sub-construction to it than that which is so plain-
stance" of the contents of a lost deed are not ly expressed. - Weinberger v. Merchants'
objectionable, the answers showing the sub- Mut. Ins. Co., (La) 728.
stance of a valid deed, with the operative
words, "granted, bargained, and sold," and
Code Ala. 1876, § 2948, providing that any
written instrument is effectual to transfer the See Witness, 5-8.
legal title, if such is the intention of the
grantor, to be collected from the entire instru-
ment.-Potts v. Coleman, (Ala.) 780.

Lost deed.

Examination.

Exceptions, Bill of.

6. In civil cases, it is sufficient that the evi- See Appeal, 15.

dence of the contents of a lost instrument is
satisfactory. Proof beyond reasonable doubt
is not necessary.--Id.

Excessive Damages.

7. But parol evidence of the contents of an See Damages, 5-7.
alleged deed is inadmissible, where its execu-
tion or the genuineness of the signature is not
established.-Id.

Hearsay.

8. Evidence that an expert told defendants
that they could not run the machinery, be-
cause they had constructed the furnace im-
properly, is hearsay, and inadmissible.-
Young v. Arntze, (Ala.) 253.

Opinion evidence.

9. It is error to permit a former salesman,
who has never examined the books, to testify
concerning the commercial standing of his
employer during the time he was in his serv-
ice, there being no other evidence that witness
had any knowledge on the subject.-Stix v.
Keith, (Ala.) 184.

Documents-Proof of execution.

10. Code Ala. 1886, § 2770, provides that
every written instrument the foundation of a
suit, purporting to be signed by defendant,
his partner, etc., must be received in evi-
dence, without proof of execution, unless de-
nied by plea under oath. Section 2676 requires
every plea to be sworn to which denies the
execution by defendant of any written in-
strument the foundation of the suit. Section
2771 provides that it is not necessary to prove
the execation of any instrument offered in
evidence under the plea of set-off or other
plea in bar, unless plaintiff put the execution
in issue by sworn replication. Held, that
an instrument containing covenants, purport-
ing to be executed by the grantee of a right of
way, was admissible without proof of its exe-
cution, there being no sworn plea of non est
factum.-Mobile & M. Ry. Co. v. Gilmer,

(Ala.) 135.

Parol evidence.

11. The record of the proceedings of a police
jury showing the election of a parish treasur-
er imports absolute verity, and cannot be con-

EXCHANGE.

Warranty-Rescission.

1. On the discovery of defects in a horse
traded for, with warranty of soundness, the
purchaser may, after offering to rescind the
trade and return the horse, maintain detinue
for the property exchanged for the horse, al-
though no fraud is practiced.-Thompson v.
Harvey, (Ala.) 825.

2. In such case, a special warranty being
shown, the plaintiff may recover, though the
defects were plain and perceptible.-Id.

EXECUTION.

See, also, Attachment; Garnishment: Ju
dicial Sales.

Time of issuance.

1. An execution issued on a judgment after
the lapse of 10 years from the date of the last
execution is voidable only on proceedings by
the execution defendant or third persons who
have acquired rights prior to its issue.-Leon-
ard v. Brewer, (Ala.) 306.
Claims by third parties.

2. In a statutory action to try the right of
property in certain oxen taken under execu
that the oxen were the offspring of a cow
tion against claimant's husband, it appeared
which the husband testified he had bought on
credit, and that claimant paid for her. He
also testified that he turned the cow over to
that, many years before, claimant had owned
his wife in payment of a debt, and it appeared
two cows, her separate property, which her
husband sold with her consent, and used the
money, promising to repay it to her. Held,
that claimant's right was only equitable, and
the jury were properly charged to find for the