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execution plaintiff.-Bush v. Henry,. (Ala.) | the claim until after final settlement, the pub

lished notice of which did not contain their

names, nor had they actual notice of it, and

they were neither present nor represented at
3. An execution issued on a judgment after it. Held, that a bíll to surcharge and falsify
the lapse of 10 years from the date of the last the account was maintainable, under Code
execution is voidable only on proceedings by Ala. $ 3937, providing for the correction of an
the execution defendant, or third persons, error in the settlement of an estate to the in-
who have acquired rights prior to its issue; jury of any interested person, without his
and a sale under such execution is sufficient to fault or neglect, by bill in chancery.-Hall v.
transfer the title, though the execution plain- Pegram, (Ala.) 209.
tiff be the purchaser.-Leonard v. Brewer, 3. Such a bill may be filed by the executor
(Ala.) 30€.

against the administrator, and no other par-

ties are necessary.-Id.

4. The staleness of a demand attacking a
4. Where a debtor whose land has been sola settlement after 20 years, and after the death
on execution surrenders possession to the pur-

of the party charged, and excused by no
chaser, and afterwards offers to redeem, in proof of ignorance or concealment, imposes
compliance with Code Ala. $8 1879-1851, the upon the attacking party the necessity of mak-
purchaser at the execution sale, or those ing clear and unequivocal proof.-Succession
claiming under him, cannot interpose, on a

of Bobb, (La.) 757.
bill to redeem, title derived aft the sale

from any other source. --Aycock v. Adler,

5. Under the Alabama statute charging all
(Ala.) 794.

5. Tenants by the year under a purchaser of the property of a decedent, except such as is
land at sheriff's sale are entitled to the grow: debts, lands descended or devised are charged

declared exempt, with the payment of his
ing crops on redemption by the judgment only with debts due by decedent at the time
debtor. -Gardner v. Lanford, (Ala.) 879.

of his death, and cannot be sold to pay com-

missions allowed on final settlement to execu-

tors.-Beadle v. Steele, (Ala.) 169.

6. An executor was ordered to pay a legacy

to the legatee, who was entitled to use the in-

terest for life, on execution of a bond by ihe
See, also, Descent and Distribuition; Wills. legatee to pay the principal to the remainder-
Actions against, see Ejectment, 3-5.

men, and, in default of the bond, to pay it
Appeal by executors, see Appeal, 2.

into court to be invested. The bond was
Party to partition, see Partition, 3.

not executed, nor was the money paid into

under order of court, inadequacy of price, court, though the executor had ample funds
see Judicial Sales, 2.

which he had invested contrary to the wili.

Land of the testator, sold under order of court,
Assets-Real property.

was purchased by the legatee, the sale con.

firmed, and the legacy directed to be invested
1. The word "assets," as used in Code Ala. in the land, which was done by the legatee
$ 2013, authorizing the grant of letters of ad- paying the purchase price by receipting for
ministration on the estates of non-residents the legacy, the conveyance being made to the
who die leaving assets, includes land situate remainder-men on the death of the legatee.
in the county where the administration is The executor resigned and turned over the as-
granted; and the death of an alien dying sets to his successor, under an agreement
abroad, and leaving only land in Alabama, that any balance due him on final settlement
will uphold the jurisdiction of the robate should be paid out of the first moneys collect-
court of the county in which the land is situ- ed. Held, that the executor could not subject
ated.-Nicrosi y. Guily, (Ala.) 156.

the land in the hands of the remainder-men
Settlements and accounting.

to the payment of commissions allowed him

on final settlement.-Id.
2. Testator, the executor, and legatees were
residents of Virginia, where letters testamen-Sales under order of court.
tary were granted. 'Ancillary letters of ad- 7. An administrator who has obtained the
ministration c. t. a. were issued to a resident order of sale under which the property was
of Alabama, where there were assets and sold to pay debts, and inaugurated and con-
debts. In answer to frequent requests by the summated the proceedings complained of in
executor, the administrator explained his an action of nullity, cannot be permitted to
failure to remit by saying that he must retain impeach them by his own testimony. He
the funds to meet local debts, about which he cannot be permitted to impeach his own offi-
informed the executor fully, but said nothing cial acts, nor to contradict the judicial pro-
about being a creditor himself. Just before ceedings had in the course of his gestion. -
the expiration of the time for filing claims, he Lipman v. Riggins, (La.) 49.
presented one for $12,000, but the court was 8. The period of five years' prescription
not asked to allow it, and $10,000 was found to tixed by the terms of Rev. Civil Code, art.
be in his hands. Twelve years later, at the 3543, cures all informalities connected with or
final settlement, the claim was allowed, and growing out of a probate sale under order of
$4,000 was found due him from the estate.court, made at public auction, and is a bar,
The executor and legatees were ignorant of “perfect and complete, in respect to minors,


married women, and interdicted persons. "- Sales under order of court-Jurisdic-
9. Complaints made of an order directing

the sale of property to pay the debts of a suc-

16. The county court, as it existed under the
cession alleged not to be due, after the sale is Const. Fla. 1868, viz., as a court of “full sur.
perfected, and in a suit to which the adminis- rogate and probate powers,” was, in its power
trator is not a party, do not go to the court's

to sell the lands of decedents for the payment
want of jurisdiction, and to avail the same of debts, a court of special and limited stat-
must be seasonably urged.-Id.

utory jurisdiction, as prescribed by the stai-
10. A purchaser at a probate sale, made un utes, and not one of general and original con-
der an order of the probate court, to pay debts stitutional jurisdiction over the subject of
of a succession that are stated on a tableau such sales. -Sloan v. Sloan, (Fla.) 603.
therein filed, is not bound to look beyond

the limited jurisdiction for the sale of land of a

17. An order made by a court of special and
decree recognizing the necessity therefor.-Id.

11. A surviving partner in community of decedent is not of itself, independent of a re-
deceased is not prohibited by Louisiana stat. cital of the jurisdictional fact in it, or in the
ute from purchasing property at a probate that the court had jurisdiction of the subject

sale proceedings culminating in it, evidence
sale of the effects of the succession he repre- of such a sale.-Id.
12. A recital, in the record of proceedings

18. Where an exhaustion of the personal es-
in the probate court for the sale of a dece-tate of the decedent is essential to the juris-
dent's lands, that plaintiff, one of the heirs, diction or power of the court to order a sale.
being a non-resident, was notified of the ap- unless the fact of such exhaustion appears in
plication for the sale, and of the day set for the order, or somewhere in the proceedings
hearing, by publication in a newspaper pub- upon which it is based, the order is corin
lished in the county, is conclusive on collateral non judice and void, even upon a collateral
inquiry, unless falsified by the record itself. such proceedings, the order of sale, though it

attack, but if the fact appears anywhere in
Goodwin v. Sims, (Ala.) 587.

13. The probate record contained a prelim. may be silent upon the subject of exhaustion,
inary order, dated December 4, 1878, reciting is nevertheless an adjudication of the exist-
that "on this day" a petition for an order to

ence of the fact of such exhaustion.-Id.
sell decedent's lands was presented, and ap- Application.
pointing January 15, 1878, as the day for hear. 19. Code Ala. 1886, $ 2106, provides that an
ing the petition, on which date the hearing application to sell a decedent's lands must be
in fact occurred, and the order of sale was made by the executor or administrator in
granted. The petition mentioned was verified writing, and must state, inter alia, "the
December 4, 1877. Held, that the record cor- names of the heirs or devisees." Held, that
rects itself, and makes it manifest that the an application by an administrator to sell
date of the preliminary order was a mistake, lands of his decedent, which averred that “L.
and should have December 4, 1877.--Id. and N. claim to be the lawful heirs" of said

14. Code Ala. 1856, & 2114, provides that no decedent, and that they are the only heirs to
order for the sale of land belonging to any es- the best of his (the administrator's) knowl-
tate shall be made when there are minors in-edge, information, and belief, and after dili-
terested in the estate, unless the probate gent search," was prima facie sufficient on
court has taken evidence by deposition as in that point. -Townsend v. Steel, (Fla.) 351.
chancery proceedings, showing the necessity 20. It is error to dismiss such an application
for such sale; and that a sale made without on motion of one claiming to be decedent's
compliance with this provision shall be wholly sole heir, in the absence of evidence that she,
void. A decree of sale recited: “And it ap- or any other than the two named, is a lawful
pearing to the satisfaction of the court; heir.—Id.

from the depositions of” certain
named witnesses, “which depositions are or-Actions by.
dered to be filed of record, " that a sale is 21. Where parties financially irresponsible,
necessary, etc. It also appeared from the without valid title, but claiming under a void
record that on the same day on which the or- attachment sale, cut timber constituting the
der of sale was made a commission issued to principal value of the land purchased, of
take the depositions of the same witnesses which others, claiming under å purchase in
named in the decree, and the commissioner bankruptcy proceedings are in possession, a
certified that the witness were examined on bill to enjoin such trespass may be maintained
the following day. Held, that the recitals of by the executors of the purchaser at bank-
the decree are, in effect, that the depositions ruptcy sale, they having taken possession
had been taken as in chancery cases, and are thereof, as under the statutes of Alabama they
therefore conclusive when collaterally at- had the right to do.-Sullivan v. Rabb, (Ala)
tacked, notwithstanding the cominissioner's 746.
certificate, and the depositions appearing in 22. Whether the will was ineffectual to pass
the transcript.-Id.

real estate is immaterial to the question of the
15. Though affidavits, stating that the in-right of the executors to maintain such an ao
terest of a decedent in land sold is only one-tion, as by the probate of the will and the
half, are not the best evidence of the extent qualification of the executors in a court of
of his title, when received upon exceptions to competent jurisdiction they became vested
a report of sale without objection, they will with at least such powers as an administrator
be considered. --Glennon y. Mittenicht, (Ala.) would have as to the decedent's realty, and

the fact that they were styled "executors,"

and gave no bond, would not render the ap- incumbrance, could not defeat the right of
pointment void.-Ia.

the broker to recover his commission from

defendant.--Birmingham Land & Loan Co. v.

Thompson, (Ala.) 473.

4. The faci that a contract made with a pro-
Right to.

posed purchaser is voidable under the statute

of frauds is no defense to an action by the
1. Under Code Miss. $ 1244, providing that brokers against the vendor for commissions,
certain things shall be exempt from seizure where the purchaser has not shown any in-
on execution, the right to exemptions may be tention to take advantage of the statute.-
asserted, though the title of the claimant to Sayre v. Wilson, (Ala.) 157.
the property claimed as exempt be only a pos-
sessory one.-Stein v. Hamblett, (Miss.) 524. owner's request, that a certain lot might be

5. An agreement by land-brokers, at the
2. Code Miss. & 1261, providing that the withdrawn from market, made after they had
amount of any life insurance policy not ex. effected a sale of it, and under the mistaken
ceeding $10,000 on any one life, shall inure to belief that the lot proposed to be withdrawn
the party named as the beneficiary thereof,

was a different one, would not prevent recov.
freed from all liability for the debts of the per-ery of commissions for the sale.-Id.
son paying the premiums thereon, has no ap-
plication where the person named as benefi. Action for commissions—Pleading.
ciary has paid the premiums.-Yale v. Mc- 6. In an action by real-estate brokers to re-
Laurin, (Miss.) 689.

cover commissions, an averment that plain-
Filing of claim.

tiffs found purchasers at the prices fixed by
3. Code Ala. & 2521, relating to exemptions, defendant, and that he refused to consum-
provides that defendant in person, or by his mate the sale, is fatally defective, on demur.
agent, may, at any time after

levy and before rer, in not alleging that such purchasers were
sale, file with the officer making the levy a able, ready, and willing to carry out the sale.
claim in writing. Held, that a delivery by
the claimant of the verified claim to the wife · Evidence.
of the constable, with instructions to deliver 7. Where the correspondence by which
it to her husband, is a filing, within the mean- plaintiffs were employed as brokers to sell
ing of that section, where she actually deliv- land does not cover the question of compensa-
ers it to him.-Bryan v. Kelly, (Ala.) 346. tion, a prior oral agreement as to the com-

missions to be charged may be shown.-Id.
Ex post Facto Laws. 8. But where the contract by correspond.

ence refers to a sale of lots at specified prices
See Constitutional Law, 6.

and terms, evidence of a prior oral agreement
that the sales should be made subject to de-

fendant's approval, and that the deeds should
Factorizing Process.

contain certain conditions, is inadmissible.-
See Garnishment.


9. In the absence of an agreement for com-

missions, established and customary charges
FACTORS AND BROKERS. for like services in the community are com-

petent evidence to prove what is a fair and
See, also, Principal and Ayent.

reasonable charge.--Id.
Advances by commission merchant, see Usu-


1. Authority to sell land cannot be revoked Indictment.
by a letter mailed to the brokers, but never 1. Under Crim. Code Ala. 1886, $$ 3811, 4383,
received by them.-Sayre v. Wilson, (Ala.) allowing the intent, in an indictment for at-

tempting to obtain money on false pretenses,
2. The testimony of one of two brokers, to be alleged in the alternative, “to injure or
who were partners in the business, that the defraud," an indictment charging an "intent
firm never received an alleged letter revok to defraud” alone, is sufficient. White y.
ing their authority, was competent to show State, (Ala.) 674.
that neither he nor his partner had received 2. It was alleged that defendant sought to

obtain damages from a railroad company fox
Right to commissions.

trunks which he falsely claimed were lost.
3. A real-estate broker induced one P. to defendant to the railroad company for com-

Held, that an application by the attorney of
enter into a contract for the purchase of cerpensation for the loss of the trunks, and pres-
tain land of defendant, nothing being said entation of the checks for the same, under
about the title. Afterwards P. discovered implied authority to do anything necessary
that there was a large amount of purchase for the prosecution of the demand, was with.
money due on the land. Held, that the fact in the scope of his authority, and was the act
that P., who stated that he was able to com- of his client.--Id.
plete the purchase, refused to do so, on ac-
count of a defect in the title, although the Evidence.
purchase money stipulated to be paid by him 3. Evidence that the wife of defendant was
would have enabled defendant to clear off the l on the platform of the station where the

ry, 2, 3.



trunks were delivered, and to which they were which the receipts forged tere intended to
checked, and that she was traveling with her represent.-Id.
husband, and that she afterwards wore some 4. In a trial for forgery of the following
of the dresses that were in the trunks, was writing: *Prime Wingard 507 X Cot. T. T.
properly admitted to show proper delivery, P.,” in order to justify the admission of proof
knowledge of that fact by defendant.-Id. to show in what the forgery consisted, it is

unnecessary to make specific averment to that

end in the indictment.--State v. Wingard,

(La.) 54.
Of sheriff, see Sheriffs and Constables 1, 2.

Former Acquittal.

See Criminal Law, 7.
Authority of commissioners.

Where commissioners were appointed to
lay out and construct a fence under act Miss. See False Preten ses; Fraudulent Conte-
1878, and deflected from the lines designated
by thein to take in other lands, the owners of In account, impeachment, see Account
which agreed to pay the extra expense, an in-

Stated, 5.
junction obtained by the county supervisors
against the building of the fence was proper-
ly dissolved.-Freeman v. Supervisors, (Miss.) FRAUDS, STATUTE OF.

Agreements within, see Trusts, 2.

Grant of right of way by parol, see Ease-
Set by locomotives, see Railroad Companies, ments, 1.
Fire Insurance.

What promises are within.

1. A verbal promise to a landlord by a cred-
See Insurance.

itor who, as security for a debt owed him by

a tenant, takes possession of the latter's crop,

on which the landlord has a lien for rent, that

he will assume the risk of fire upon being a!-
of mortgage, see Chattel Mortgages, 9; lowed to store it in a place considered danger-

Mortgages, 7-11.
vendor's lien, see Vendor and Vendee, of frauds.-Dillon v. Patterson, (Miss.) 103.

ous by the landlord, is not within the statute

Promise to answer for another's debt.
Foreign Laws.

2. A bill of exchange drawn at the time of

the execution of a lease for the rent, and
Judicial notice of, see Evidence, 2.

which was part of the original agreement to

lease, is not, as to the acceptors, who are not

parties to the lease, a promise to answer for

the debt of another, but an original promise,
What constitutes.

founded on a valid consideration. - Espalla
1. A writing of the following tenor: “Prime

v. Wilson, (Ala.) 867.*
Wingard 507 X Cot. T. T. P., "-is such in form Lease of land.
as to be apparently of some legal efficacy, and 3. In Mississippi since a lease of land for a
may serve as a basis for a prosecution for for- term not exceeding one year is not required
gery, uttering, etc.-State v. Wingard, (La.) to be in writing, (Code, $ 129:2,) an oral lease

made December 15, 1887, for the year 1858, is
2. On a trial for forgery of tax receipts, it valid, notwithstanding it is a contract which
appeared that one L. had requested defendant is not to be performed within a year. -McCroy
to pay the taxes due by himself and one B. for v. Toney, (Miss.) 392.
1887, and, to guide him, gave him certain tax Representations as to character.
receipts for the taxes of 1886. Defendant
afterwards gave him the two instruments al-

4. In an action based on false representa-
leged to have been forged, -one being the tax tion made by defendant as to the credit and
receipt of B., which L. had handed to him, on business of a lumber company of which de-
which the date had been changed from De- fendant was president, by which representa-
cember, 1886, to December, 1897; and the other tion credit was given to said company by plain-
an old tax receipt of defendant for the year had already negotiated for the sale of such

tiff, the representation was that the company
1886, in which the name of L, had been writ-
ten. On the iace of both receipts it appeared large quantities of lumber that it was unable
that they were given for the taxes of the year from other mills, and that the lumber pro-

to fill these sales without obtaining lumber
1886, which taxes had already been paid.
Held, that since the receipts, it true, could posed to be purchased from plaintiff would be
not injure or defraud, defendant was not appropriated to filling these sales. Held, that
guilty of forgery.-Cox v. State, (Miss.) 618. this representation was within the purview

of Code Ala. 1886, 8 1734, providing that no

action can be maintained to charge any per
3. An indictment for forgery need not aver son by reason of any representation coucer:-
the existence of the debt tre discharge of ing the character, ability, or trade of any oto-


er person, when such action is brought by the grantee understands the motive, the deed
the person to whom such representation was is valid and binding between the parties.-
made, unless the same was in writing, signed Brett v. Brett, (Miss.) 105.
by the party sought to be charged. -Clark v. Evidence.
Dunham Lumber Co., (Ala.) 560).
5. This rule has no application where the

7. On the issue as to whether the transfer
representations were fraudulently made, but to claimants of property attached was made

complaint was demurrable in not by the debtor with fraudulent intent, plaintiff
alleging that defendant knew that his repre- may show that on the day following such
sentations at the time were untrue.-Id.

transfer the debtor conveyed other property

in fraud of her creditors.-Bernheim v. Dib-

rell, (Miss.) 693.
6. In order to set up the statute of frauds
as a defense by demurrer to a bill to enforce

a trust, it must affirmatively appear by the
bill that the contract was not in writing.- What constitutes offense.
Manning v. Pippen, (Ala.) 57%.

7. In an action on a bill of exchange the 1. The purpose of the first section of act
defense that the instrument was given for a Fla. June 7, 1887, denouncing the crime of hav-
debt of another, and does not express the con- ing, keeping, exercising, or maintaining a
sideration, and is therefore invalid under the gaming-room, or a house or other place for
statute of frauds, must be specially

pleaded the purpose of gaming or gambling, is to pun.
to be available. -- Espalla v. Wilson, (Ala.) 867. ish the person whose establishment or enter-

prise or business the gambling-house is,

whether he operate or manage it in person or
FRAUDULENT CONVEY- “by himself, ” or by a servant, clerk, agent, or

in any other manner; and the object of the

second section is to punish any one acting as
See, also, Chattel Mortgages.

the servant, clerk, agent, or employé of the

former person in carrying on, or operating, or
What constitutes — Change of pos- managing, the house or other place for the

purpose of gambling.-Wooten v. State, (Fla.)

1. The retention of possession by the grant- 2. In a prosecution under the first section
or of land is prima facie evidence that the the jury must be satisfied beyond a reason-
conveyance was fraudulent.-Cooper v. Da-able doubt that the defendant is the person
vison, (Ala.) 650.

whose establishment or business the gamb-
2. A mortgage of a stock of merchandise ling-room is; but proof that there was an ar-
anthorizing the mortgagor to continue the rangement between the defendant and his
sale of the goods, which expressly stipulates agent, managing the business for him, by
that such sale shall be exclusively for the which, as one of the terms of his employment,
benefit of the mortgagee, is valid as against the latter was to regulate or control the opera-
the mortgagor's creditors, in the absence of tion of the business in the room, and to use
evidence of actual fraud.-Murray v. McNealy, his own judgment as to preventing persons
(Ala.) 565.*

from playing, would not defeat a conviction;

and it is not error to refuse to charge the jury
3. In an action for the value of goods by a that they must be satisfied “beyond a reason-
vendee against attaching creditors of the ven- able doubt that the defendant had the control
dor, a charge that the vendee must prove an

or arrangement of the room; that is, he could
adequate consideration when the fairness is regulate and control what was done there, and
attacked, and that if the vendee paid $4,600 could have prevented the person or persons
for a stock of goods worth $65,000, the jury from playing, if he had seen fit to do so.”-Id.
might consider such fact should have been Evidence.
given.-Stix v. Keith, (Ala.) 184.

3. The effect of section 4 of act Fla. June 7,
Knowledge of purchaser. 1887, providing that the finding of the imple-
4. It is error to exclude testimony tending ments and devices used in gambling, on any
to show that the debtor was insolvent at the premises, shall be prima facie evidence that
time of the sale to claimants of goods at- such premises were used for gambling pur-
tached, though there is no direct testimony poses, is to authorize the jury to infer from
that the claimants knew of such insolvency. the proof of the finding of such implements
-Bernheim v. Dibrell, (Miss.) 693.

and devices, that the room they were found in
5. A refusal to charge that a person acquir. was kept for the purpose of gambling, where
ing an interest in an established business, and there is nothing in the attendant circum-
afterwards purchasing the stock of goods, is stance, or in any of the evidence in the case,
under obligation to examine the books to pro raising in their minds a reasonable doubt to
tect himself from the implication of notice of the contrary.-Id.
the insolvent condition of the vendor, was

4. Such provision does not give to proof of
correct. --Stix v. Keith, (Ala.) 184.

such finding the further effect of primui facie

proof of the actual use of the instruments as
Rights of grantee.

another and independent evidence that the
6. Where land is bought and taken in the house, room, or other place is kept for the pur-
name of a third person for the purpose of de- pose of gambling.-Id.
frauding the real purchaser's creditors, and 5. In a prosecution for keeping a gaming


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