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Jence 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
3. Where by a change in the uses of a hall
such violence.- Farmer v. Farmer, (Ala.) 434. in a block owned by different persons, the en-
joyment of an easement of entrance to it
through the building of another owner bas
2. Adultery is condoned where no separa- become exceedingly oppressive to the latter,
tion occurs for three months after knowledge 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-
3. In a suit by a wife for divorce, a recrim- ment, equity will not interfere, but will leave
inatory charge of adultery is not established complainants to their remedy at law.-Mc-
Bryde v. Sayre, (Ala.) 791.
by the husband's testimony to the contents
of an alleged intercepted letter, which, he Conveyance-Implied grant.
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 coc-
tinuous” easement; and, not being one of
necessity, does not pass by conveyance by the
common owner, under the doctrine of implied
See Evidence, 10.
See, also, Adverse Possession.
Title to support.
1. It is error to instruct the jury that if the
uhusband of defendant removed into the state that all certificates issued pursuant to any
1. Under Code Ala. 1886, $ 2782, providing
of Alabama as a place of refuge, or to es-
cape arrest in the state of Georgia, and
that act of congress, by any one authorized to is-
a domicile in Alabama,” since the change of vest the legal title in the holder, and must be
was his sole purpose,
this would not give him sue them, upon any warrant or order of sur.
vey or for any donation or pre-emption claim,
domicile depends on the intent that the new received as evidence of such title, a receipt in
habitation shall be permanent or of indefinite full, given by the receiver of the public
duration, and not on its purpose.-Young v.
Pollak, (Ala.) 279.
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. $ 2200,)
that W., after he came to Alabama in 1875 ortion of ejectment, or the corresponding stat-
1076, returned to Georgia to remain perma utory real action.-Case v. Edgeworth, (Ala)
nently or for an indefinite length of time: 783.
such return, with the intent as stated, would
be an abjuration of the state of Alabama,” is possession of the land in controversy is not
2. A decree in chancery that defendant's
erroneous where the return was under arrest, adverse to plaintiff's title estops him to deay
and the absence due to involuntary confine-such title; and hence a subsequent conrey.
ance of the land by plaintiff is valid, though
defendant is still in possession, and defeats
plaintiff's right to maintain ejectinent-
As a defense to homicide, see Homicide, 16. Brunson v. Morgan, (Ala.) 495.
By heirs against administrator.
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. 1981, c. 3246, $ 2, (Mc. had a lawful right to vote.-Gandy v. State,
Ciel. Dig. p. 166, $ 54.)-Id.
6. In ejectment brought by the heirs of an
estate against the adıninistrator, 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 EMINENT DOMAIN.
7. The fact that defendant in ejectment Petition-Amount of land acquired.
claims the absolute title to the premises, while 1. Though a railroad company may, for cer-
setting up as a defense only a possessory right tain purposes, acquire an easement in lands
as administrator of an unsettled estate, in no beyond the limited right of way allowed by
way affects the plaintiffs' right to recover as statute such extra condemnation cannot be al.
heirs, and a replication setting up such facts lowed under a petition praying only for a right
is bad on demurrer.-Id.
of way, nor unless the petition specify the
8. Under Code Miss. $ 2483, a plea of not purpose for which the excess is prayed, and to
guilty admits defendant's possession. De what portion of the line it applies. -Brown v.
Tendant interposed such a plea, and also the Rome & D. R. Co., (Ala.) 195.
special plea denying the fact of possession,
allowed by section 2486, which provides that compensation.
“in such case the title of the plaintiff shall be 2. Under Sess. Acts Ala. 1884-85, p. 223, relat-
admitted, and the only question on the trial ing to condemnation of land by defendant com-
shall be in relation to the fact of possession.” pany, providing that if the owners of the lands
Held, that the court should have directed one cannot agree with the company as to damages,
or the other of the pleas to be stricken from “or, in case such owner is an infant,
the files, even though no action was taken such value or damages shall be ascertained in
by plaintiff, as no issue could be presented the manner directed by the general laws,” a
while both pleas remained.-Powell v. Wat- previous attempt to agree on damages need
son, (Miss.) 513.
not be alleged nor proved in the case of lands
owned by an infant, though he has a guard-
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 au 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
See, also, Fraudulent Conveyances; Injunc-
they being the lands sold by H.,” etc. Held, tion; Mortgages: Partition; Partnership;
that the blank did not render the power inad- Quieting Title, Receivers; Specific Per-
missible in evidence, and that, as it related to formance; Trusts.
part of the land in controversy, its relevancy Bill for discovery by creditors before judg-
was not impaired by the fact that it did not
ment, see Discovery, 1, 2.
embrace the entire tract.-Potts v. Coleman, to confirm tax-title, see Taxation, 5–7.
Jurisdiction in partition, see Partition, 2.
Relief against obstruction of easements, see
11. One deriving title through a life-tenant,
whose interest is plainly shown by the title Suppression of deposition, see Deposition, 6.
papers, is not entitled to compensation from
the remainder-man for improvements.-Stew-
art v. Matheny, (Miss.) 387.
1. When equity has acquired jurisdiction to
12. A remainder-man is not estopped by per- reform writings it will retain it and grant full
mitting improvements to be made by one who relief.--Houston v. Faul, (Ala.) 433.
derives title through the life-tenant, without Reformation of deed.
giving notice of his rights, where there is
2. When a mistake is made in the descrip-
nothing to show any obligation to give notice. tion of land in a deed and mortgage, equity
the land conveyed is not thereby increased. 11. The husband being entitled to half of the
Wetherington v. Mason, (Ala.) 679.
personal estate of the wife on her death, that
4. On failure of a deed given by a wife, of sum is properly decreed to his administrator.
her separate estate, for a debt in part for the -Id.
family support, and in part contracted by the 12. In a case free from fraud, equity will
husband, to correctly describe the land sold, not rescind a conveyance on account of a want
equity will reform it, on payment by the gran- or defect of title, but will leave the purchaser
tee to the wife of the part of the consideration to his remedy at law, if he has not abandoned
composed of the husband's debt. — Conner v. or restored possession, unless its retention
Armstrong, (Ala.) 449.
is necessary to his reimbursement or indem-
5. Where the vendor represented that the nity.---Thompson v. Sheppard, (Ala.) 334.
tract sold contained about 25 acres more than
it really did contain, the mistake is so gross Opening accounts-Surcharging.
that equity will afford the vendee relief by 13. Plaintiff's intestate agreed to assume
abatement of the purchase price.-Hodges v. liability for advances to be made by defend-
Denny, (Ala.) 492.
ant to her and her father, for carrying on
6. D. mortgaged a tract of land to J., C. & farming. At the close of the year å settle-
Co., misdescribing certain courses and dis- ment was bad, and a note and mortgage exe-
tances. The mortgage was foreclosed, and cuted by her for the balance due, on which
the land sold, the mortgagees being the pur- judgment was entered by consent. On a bill
chasers; the misdescription being carried filed by intestate in her life-time, in which
into the foreclosure proceedings and deed. she conceded liability for advances made ac-
The purchasers conveyed the land, and there cording to the agreement, but sought to elim-
were various conveyances of parts of the land inate erroneous charges and usurious inter
down to complainants. Hell, that a court of est, the judgment was annulled, because of
equity has power to correct the misdescription the fiduciary relation between intestate and
in the mortgage, the decrees, and the deed, her father." Held, that, in the absence of al-
so as to make it conform to the true intent of legations and proof of intentional fraud by de-
the parties to the mortgage.-Greeley v. De fendant, infecting the whole account, the ac-
Cottes, (Fla.) 239.*
count would not be opened, but leave would
7. Where a bill filed against the heirs of a be given to surcharge and falsify.-Moses F.
mortgagor alleges a mistake in the description Noble, (Ala.) 181.
of land described in the mortgage, and that
the mortgagor and mortgagees intended the Laches.
alleged true description, and that the mort- 14. A bill in equity to set aside a deed to
gagees who purchased at a foreclosure sale land, where there bas been acquiescence in
took possession of the land according to the an adverse possession for 10 years before suit,
true description, and that he and those claim is barred, under Code Ala. 1886, $ 3419, unless
ing under him have since held possession ac- there are excusable circumstances taking the
cording to the true description, and that the case out of the operation of the statute.-
mistake has been but recently discovered, a Scruggs v. Decatur Mineral & Land Co., (Ala.)
demurrer for want of equity should be over- | 440.
15. A bill to set aside a deed alleged that S..
the grantor, conveyed the property to a
Rescission and cancellation of deed. daughter of his second wife by her first mar-
8. As a deed by husband and wife of her riage, in 1868; the deed reciting that a for
separate estate, absolute in form, reciting a mer deed, made in 1858, being lost during the
valuable consideration, and purporting on its war, he executed this one in lieu thereof;
face to conform to statutory requirements, that the latter deed was recorded; that be,
divests the wife of the legal title, it is error after the war, and before making the deed of
to dismiss for want of equity a bill by her to 1868, erected buildings thereon, and resided
have the deed canceled as a cloud upon the there until the death of his wife, in 1870, with
title to her separate estate, as she has no ad- his step-daughter, who was treated as one of
equate remedy at law.-Armstrong v. Conner, 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 bis son in Mississippi,
separate estate to her husband and a son, from 1871, until his death, in 1882. Complain-
which is a pullity for want of joinder therein ants alleged undue influence on the partof 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 1857,--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- Hell, that there was no such excuse short
vis, (Ala.) 83.
for the delay in prosecution of the suit as to
10. In an action to set aside a conveyance by bar the running of the statute.-Id.
a married woman of her separate property to 16. In such case the defendants can avail
her husband and son, for want of joinder themselves of such defense by demurrer.
therein by the husband, where defendants are --Id.
sons of the married woman, and allege a com-
promise with their sister, and a conveyance Pleading.
by her to them of her interest in the property, 17. An original bill claimed a resulting
which are admitted by her, a decree of an in- trust in favor of complainant, averring that
terest to her is erroneous.-Id.
her father furnished money for her benefit to
defendant with which to redeem the land,
and that he took a conveyance of the legal
title to himself. The amended bill averred Res adjudicatii, see Judgment, 2-6.
that complainant's father furnished the To allege that remittitur was compelled, see
money to redeem for his own benefit, that de- Damatges, 7.
fendant took the legal title to himself, etc.; deny corporate existence, see Corpora-
that her father was dead, and that she was tions, 1, 2.
one of his heirs. Held, that the amended
dedication, see Dedication, 2.
bill was a radical departure from the case set up failure of consideration, see Nego-
made by the original bill, and a demurrer for tiable Instruments, 1.
that reason should have been sustained.-
Marsball v. Olds, (Ala.) 506.
18. A bill seeking a partition of lands among A corporation, whose authorized officers.
the heirs, and incidentally thereto an allot- have attempted to convey its property, can.
ment of dower, and sale of enough land to pay not appropriate the purchase money, and
taxes due, and an adjustment and equalization then, on the ground of a defective execution
of advancements, is not multifarious.-Mar- of the power of conveyance by such officers,
shall v. Marshall, (Ala.) 475.
recover the property in equity.-McIver v.
Abernethy, (Miss.) 519.*
19. The rules of chancery practice (Code
Ala. 1886, p. 524) require that all testimony of-
fered shall be noted by the register and en-Admissibility, see Account Staten, 3, 4; Di.
tered on the minutes, and that any testimony vorce, 3; Fraudulent Conveyances, 7;
pot “noted by the register on the minutes Trespa88, 4.
must not be considered as a part of the record, Admissions of principal obligor, see Sheriffs
nor be considered by the chancellor.” Held, mul Constables, 5.
that a conformity to the rules requires, when Burden of proof, see Navigable Waters, 3.
a cause has been submitted, and the order of of alteration, see Alteration of Instruto
submission vacated, that on a resubmission the ments.
testimony should be noted and entered on the to show contributory negligence, see Nego
minutes as if no former submission and note ligence, 3.
of testimony had been made, unless the par- usury as defense, see Usury, 5.
ties agree to substitute the former note.-Confessions, see Gaming, 5.
Reese v. Barker, (Ala.) 305.
In action for breach of contract, see Con-
on judgment, see Judgment, 9.
20. Where a hearing is on bill and un-
criminal prosecutions, see Adultcry, 2;
sworn answer the complainant is not entitled
Arson, 4-7; Burglary, 2; Carrying
to relief unless so entitled on the admitted al- Weapons, 4; Conspiracy; Criminal
legations of the bill.-Id.
Law, 15-32; False Pretenses, 3; Hom-
21. Defendant was summoned to answer a
icide, 17-25; Perjury, 2.
bill in equity at rules on September 3d. On
ejectment, see Ejectment, 9, 10.
the third day of the next term, which began
equity, see Equity, 19.
September 17th, a decree pro confesso was
prosecution for gaming, see Gaming, 3-5.
taken against her. Held'erroneous, under Objections to, see Trial, 5.
Code Miss. $ 1889, allowing a party until the of adverse possession, see Adverse Posses-
next monthly rule-day to plead, etc. --Jones y. sion, 3-5.
Hervey, (Miss.) 517.
dedication, see Dedication, 1.
22. Å defendant in equity, who is present
partnership, see Partnership, 2.
by his counsel, and takes part in the hearing usury, see Usury, 1.
of the cause on the day set for hearing, with. Pleading and proof, see Plending, 12, 13.
out objection that it had been prematurely Review of weight of, see Appeal, 28.
set, waives his right to further time in which To explain description in deed, see Deed, 3, 4.
to take proofs, though the hearing was in fact
within five months from the filing of the an-
swer.-Hart v. Bloomfield, (Miss.) 620.
1. The court will not take judicial notice of
23. Though where a person is made, at his the rates of interest prevailing in other states.
own suggestion, a party to a suit in 'equity Insurance Co. of North America v. For
after having parted with his interest in the cheimer, (Ala.) 870.
property in litigation, the bill should be dis-
Best and secondary evidence. tradicted by parol in a collateral proceeding.
4. A certified copy of a deed made in 1831, -State v. Šimmons, (La.) 29.
and recorded on the day of its date, is admis-
12. Evidence of a contemporaneous oral
sible in evidence, the presumption being that agreement by the assignor of a contract of
it was properly acknowledged or proved, with purchase of land that, if the vendor should
a proper certificate, and that the subscribing fail to make a deed to the assignees, he would
witnesses are dead, and the original grantees return the consideration, and would guaranty
being dead, and the plaintiffs being their suc- that “it would be all right,” is inadmissible,
cessors, there is no presumption that they as changing the terms of the written assigu.
have the original deed, and they need not ac- ment.-Griel v. Lomax, (Ala.) 325.
count for the loss before introducing the copy. explanation in the language of a written con-
13. Where there is no ambiguity requiriug
-Allison v. Little, (Ala.) 221.*
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.
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.
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
8. Evidence that an expert told defendants
that they could not run the machinery, be-
1. On the discovery of defects in a horse
cause they had constructed the furnace im- | traded for, with warranty of soundness, the
properly, is hearsay, and inadmissible.- purchaser may, after offering to rescind the
Young v. Arntze, (Ala.) 253.
trade and return the horse, maintain detinue
for the property exchanged for the horse, al-
though no fraud is practiced,—Thompson 5.
9. It is error to permit a former salesman, Harvey, (Ala.) 825.
who has never examined the books, to testify 2. In such case, a special warranty being
concerning the commercial standing of his shown, the plaintiff may recover, though the
employer during the time he was in his serv- defects were plain and perceptible.-Id.
ice, there being no other evidence that witness
had any knowledge on the subject. --Stix v.
Keith, (Ala) 184.
Documents-Proof of execution.
See, also, Attachment; Garnishment: Ju
10. Code Ala. 1886, $ 2770, provides that dicial Sales.
every written instrument the foundation of a
suit, purporting to be signed by defendant, Time of issuance.
his partner, etc., must be received in evi- 1. An execution issued on a judgment after
dence, without proof of execution, unless de- the lapse of 10 years from the date of the last
nied by plea under oath. Section 2676 requires execution is voidable only on proceedings by
every plea to be sworn to which denies the the execution defendant or third persons who
execution by defendant of any written in- have acquired rights prior to its issue.—Leon-
strument the foundation of the suit. Section ard v. Brewer, (Ala.) 306.
2771 provides tbat it is not necessary to prove Claims by third parties.
the execution of any instrument offered in
evidence under the plea of set-off or other
2. In a statutory action to try the right of
plea in bar, unless plaintiff put the execution property in certain oxen taken under execu-
in issue by sworn replication. Held, that tion against claimant's husband, it appeared
an instrument containing covenants,
purport- that the oxen were the offspring of a COT
ing to be executed by the grantee of a right of which the husband testified be had bought on
way, was admissible without proof of its exe- credit, and that claimant paid for her. He
cution, there being no sworn plea of non est also testified that he turned the cow over to
factuu. --- Mobile & M. Ry. Co. v. Gilmer, his wife in payment of a debt, and it appeared
that, many years before, claimant had owned
two cows, her separate property, which her
husband sold with her consent, and used the
11. The record of the proceedings of a police money, promising to repay it to her. Held,
jury showing the election of a parish treasur- that claimant's right was only equitable, and
er imports absolute verity, and cannot be con- I the jury were properly charged to find for tað