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try afterwards. One already in possession, evidence to justify such statement. —Young
even though a trespasser, or there by implied v. Pollak, (Ala.) 279.
permission, cannot, by a warning then given,
be converted into a violator of the statute. - Instructions.
Goldsmith v. State, (Ala.) 480.

7. A charge which, as a whole, may have
9. Under such circumstances, a charge of misled the jury, and caused them to arrive at
the court "that defendant had a right to go a wrong conclusion, is cause for reversal. —
on the premises, as any one has to go on the Meinhardt v. Mode, (Fla.) 672.
land of another, but these things are put at an 8. It is proper to refuse instructions as mis-
end when the owner or possessor of lands leading when they are based on the theory of
warns him not to do so, was calculated to a party as to the facts in evidence, and ignore
mislead the jury.-Id.

the legal effect of other facts, applicable to
10. In a prosecution under such statute the the relation and rights of the parties.-Florida
state, having proved warning and an entry a Ry. & Nav. Co. v. Webster, (Fla.) 714.
month or two afterwards, cannot show that 9. It is error for the court in its instruction
defendant entered a second time, after the to assume as proved a material fact concern-
prosecution was commenced, and an instruc- ing which the evidence is conflicting.–McKee
tion based on such evidence is erroneous.- v. Munn, (Miss.) 616.
Chappell v. State, (Ala.) 419.

10. Where there is a substantial conflict in
the evidence, the trial court properly refuses

to take the question involved from the jury.-

Dorgan v. Weeks, (Ala.) 581.

11. A charge cannot be said to assume facts
See, also, Appeal; Judgment; Jury; New not in evidence, when it is so framed as to
Trial; Prohibition, Writ of: Witness.

cast upon the jury the determination of the
Directing verdict, assessment of damages, question to which the facts relate, and there
see Replevin, 1.

is some evidence on the question to be con-

sidered.-Florida Ry. & Nav. Co. v. Webster,
Conduct of trial.

(Fla.) 714.
1. It is optional with the court to have the 12. Where defendant sets up a particular
defendant or his counsel called, and the fail. defense, and plaintiff, without questioning its
ure of the record to show a formal call is a legal sufficiency, takes issue on it, and the
defect of form, and not of substance, and is proof fully sustains the defense, defendant is
cured after final judgment by Code Ala. entitled to a general charge in his favor.-
$ 2935.-Home Protection of North Alabama Columbus & W. Ry. Co. v. Wood, (Ala.) 463.
v. Caldwell, (Ala.) 338.

13. Where parol evidence is conflicting, an
2. A defendant who does not insist upon affirmative charge should not be given in
the trial of an exception before the case is favor of either party.-Beard v. Horton, (Ala.)
tried on the merits is not presumed to have 207.
waived the exception, when the exception 14. In an action for labor and material, an
suggests a defect which the court may notice instruction that plaintiff must make out his
er proprio motu, such as an omission in a case to the reasonable satisfaction of the jury,
rute to erase a mortgage, to make the mort- and that, if the evidence leaves the jury in
gagee whose rights are involved a party, or to reasonable doubt as to any item of plaintiff's
notify him.-Ashbey v. Ashbey, (La.) 546. account, plaintiff cannot recover as to such

3: Where, in attachment proceedings, two item, is properly refused.-Birmingham Fire
claimants assert a right to the property at- Brick Works v. Allen, (Ala.) 454.
tached by purchase from the debtor, it is 15. On an issue as to the amount of brick in
error to exclude one of the claimants from the a certain kiln, where the evidence is that
court-room while the other is testifying.- plaintiff had requested the president of de-
Bernheim v. Dibrell, (Miss.) 693.

fendant corporation to go with him to meas-
Recalling witness.

ure the brick, and that the president had de-
4. The rule that a witness cannot be recalled sider such evidence, in connection with all the

clined, an instruction that the jury might con-
after baving been once on the stand does not other circumstances in the case, while mis.
apply where he is recalled for different testi- leading, is not error.
mony, the occasion for which has arisen since misleading tendencies should have been cor.

Its argumentative and
his former examination.-Mississippi & T. R. rected by a counter-charge requested by de-
Co. v. Gill, (Miss.) 393.

Objections to evidence.

5. An objection to evidence, taken on the
erroneous supposition that it would vary a

written instrument, should be overruled,

though the evidence itself is incompetent for
other reasons.-Sharp v. Hall, (Ala.) 497.


Where the evidence entirely failed to show
Arguments of counsel.

that the box in suit contained any money or
6. The domicile of W. being in issue, a re- values as alleged by plaintiffs, and which de-
mark by counsel that "in 1881, and up to 1883 fendants were alleged to have converted, or
or 1884, when W. lived in Chambers county, to connect either of the defendants with any
Ala., he was dodging the officers of the law spoliation of the box, no recovery could be
for awhile in Alabama, and then in Georgia,' had as against them.-Fisk v. Germania Nat.
should not be permitted where there is no l Bank, (La.) 532.


extent that her stock had been taken to reim-

burse the father he would be held as trustee
Implied trusts.

in invitum.-Winston v. Mitchell, (Ala.) 741.
1. Where a purchaser of lands, unable to 6. As the Alabama married woman's act of
make the deferred payment, borrows money February 28, 1887, abrogated the trusteeship
from a third person, to whom he procures the of the husband over the wife's separate es-
title to be conveyed by his vendor, the third tate, and enabled her to sue for the income
person agreeing to convey to the purchaser and profit of it, she is entitled to charge the
on repayment of advances, the relation be- land with interest from that date on the
tween the parties is that of vendor and ven- amount of her money used.-Id.
dee, and the remedy for the breach of the
agreement is a bill, in the nature of a bill for appointment of trustee.
specific performance, to enforce the trust, and

7. Under Code Ala. 1876, $ 3732, the register
not a bill to have the deed declared a mort-in chancery has authority, on the death of the
gage.--Mosely v. Mosely, (Ala.) 732.

trustees of an express trust, to appoint sne-
2. Such an agreement is within the statute cessors, on the application of persons in inter-
of frauds, (Code Ala. 1886, $ 1845,) which pro- est; and church proceedings appointing a
vides that “no trust concerning lands, except person to make application are admissible to
such as results by implication or construction show his authority to make the application.-
of law, can be created" except in writing. Allison v. Little, (Ala.) 221.
There being no averment that the deed to the Rights of purchaser of trusts.
third person was obtained by fraud or deceit,
or that any was intended or practiced in mak-

8. Authority to third persons to transfer
ing the agreement, the fact that he after stock, expressing that it was given on receipt
wards refused to convey is not sufficient to

of full consideration, if coupled with a secret
bring the case within the exception, as the trust, does not carry the trust to the pur-
fraud must have been the means of acquiring chaser, unless knowledge of such trust is
the title.--Id.

brought home to him. The breach of trust, il
3. Where a husband conveys land to his any, is chargeable to the persons having au-
wife on her promise to make a will in his thority to transfer.-Foster v. Ambler, (Fla.)
favor, though equity cannot compel specific 263.
performance by directing the execution of a

9. The rule that a purchaser of property
will, yet it will fasten upon the land conveyed from a third person incumbered with a trust
a trust as for the purchase money, and, so far cannot hold against the true owner if the con-
as the land will furnish the means, will se- sideration of the purchase is only an ante-
cure to the husband what he lost by her fail. cedent debt does not apply where there is
ure to keep her promise. - Manning

v. Pippen, further consideration in the surrender of a
(Ala.) 572.

valuable security for the debt.-Id.
4. If the promise of the wife be treated as
simply a contract to receive and hold the
land, in express trust to compensate her gran-

tor by making a will, the statute of frauds ap-
plies, but if it be shown that the deed was 06- What constitutes.
tained with a fraudulent intent, without any 1. An item included in a mortgage debt was
intention to make a will, and pursuant to that $130, the price of a mule. The mortgagor ne-
intention no will was made, a trust will result gotiated the purchase with the owner, agreed
from such fraud, and the question of the stat-on $102.50 as the price, and requested the
ute of frauds becomes immaterial.-Id. mortgagee, who was advancing him means, to

5. Complainant's father had become liable pay for it, which he did, and the mule was de
as accommodation indorser of her husband on livered to the mortgagor. The latter testi.
notes held by a bank and W. The husband | fied that no price was agreed on between him
was also largely indebted to others. On af- i and the mortgagee, while the mortgagee tes-
firmance on appeal of a judgment against the tified that he bought the mule for cash, and
husband, on the supersedeus bond of which sold it to the mortgagor for $130 on credit.
the father was surety, complainant proposed Held, that the transaction was not a sale by
to her father to sell her bank-stock, and pay the mortgagee to the mortgagor, but a usuri-
the debts for which he was liable, and secure ous loan. -Meyer v. Cook, (Ala.) 147.
himself as to the judgment by certain land. 2. A commission merchant advanced money
He proposed to her to pledge her stock, and to a planter, taking his note therefor due in
with the proceeds pay the W. debt and the the next cotton season, with interest from
judgment, secure herself by a mortgage on date, with an additional agreement that for
her husband's land, sell it at private sale, and every $10 loaned the planter would deliver to
save his indorsement. The father purchased the merchant one bale of cotton for storage
the judgment, and afterwards a note by com- and sale on commission. Held, that where
plainant and her husband for part of the there was a reasonable expectation that the
amount was given him, which was paid with planter could deliver the cotton, the contract
the proceeds of complainant's bank-stock. was not usurious, and was binding.--Harmon
The husband's land was afterwards sold to v. Lehman, (Ala.) 197.
the father under execution issued on the judg. 3. In such a case, where the price agreed
ment. Held, that the complainant was not to be paid as commission for the sale of the
entitled to a resulting trust in the entire land, cotton is about 50 per cent. more than the
on the ground that the judgment had been customary price charged where no money is
bought for her and with her money, but to the advanced, the transaction is usurious.- id.*

Action to recover back.

bounds, parol evidence was admissible on be-
4. One who pays a usurious mortgage with half of the vendee, to show that the sale was
out notice of the usury, at the request of the in fact by the acre, and that the parties adopt-
mortgagor, may recover from him the sum so ed this mode of description to fix the aggre-
paid. -Perdue v. Brooks, (Ala.) 126.

gate price.-Hodges v. Denny, (Ala.) 492.
Usury as a defense.

Assignment of contract — Rights of
5. Where one enters into a contract, in con-

sideration of a loan, to deliver certain cotton, 4. An assignment by the holder of a contract
to be sold on commission, which contract is of purchase of land, of all the assignor's “right,
usurious if the borrower has no reasonable title, and interest” in the land, without cove-
expectation that he can comply with its terms, nants of warranty, seisin, or future enjoy-
the burden is on him to show that in making ment, transfers only such interest as the as-
the contract he had no such expectation. - signor had, and does not make him liable for
Smith v. Lehman, (Ala.) 204.

a failure of title.-Griel v. Lomax, (Ala.) 325.
6. Where no usury is included in notes given 5. An intentional concealment by the assign-
for land, payment of usurious interest for ex- or of a contract of purchase of land of the
tension of time on the first of the notes, by a fact that he and his co-vendees in the con-
subsequent agreement, is no defense to a fore- tract were bound to execute joint notes for the
closure of the vendor's lien to satisfy the sec- purchase price amounts to legal fraud, enti-
ond note.-Woodall v. Kelly, (Ala.) 164. tling the assignees to recover from him the

7. An answer to such a bílì, averring that consideration paid.-Id.
complainants after the maturity of the first 6. Evidence that after the assignment the
pote demanded 124 per cent. interest thereon assignor had a conversation with his co-ven-
for a year's indulgence, which respondents dees, who then told him that they would not
promised, and that upon the expiration of that sign joint notes with the assignees, and would
time they demanded and received 15 per cent., have nothing more to do with the contract, is
does not sufficiently allege the facts of the admissible to show the materiality of the con-
usury to raise that question.-Id.

céaled fact that the notes were to be signed

jointly, and that the assignees were preju-

diced thereby.-Id.

Rights and remedies.
Pleading and proof, see Pleading, 12, 13 7. In an action by a vendee against a vendor,

a petition which demands reimbursement for

taxes paid since sale by the vendee, which ex-

isted anterior thereto, and for damages sus-
See, also, Deed; Fraudulent Conveyances; tained by being compelled to sell other prop-
Judicial Sales; Specific Performance.

erty at public auction, in order to pay said
Ler rie sitoe governs, see Conflict of Laws but not as to the latter. -Sandidge v. Hunt,

taxes, states a cause of action as to the former,
Sale of homestead vendor's lien, see Home- (La.) 55.
stend, 4.

8. In an action by vendee against vendor
Vendor's lien, see Sale, 6.

for reimbursement for taxes paid by the ven-
The contract.

dee since sale, but which existed prior there-

to, no allegation of eviction is necessary as a
1. A writing acknowledging the receipt of a sine qua non for the discharge of the taxes
sum as part purchase price of land, the title to incumbering the property acquired. It is only
be executed at a future date, and the terms to necessary to allege the existence and dis-
be ascertained by reference to another instru-charge of the same.--Id.
ment, is not a sale which transfers the owner-
ship of the property, but a promise of sale on

Dissolution of sale.
the conditions imposed, and confers the right 9. Under a judgment dissolving the sale of
on the promisee to compel performance on the an immovable as an effect of the dissolving
part of the promisor. -Thompson v. Duson, condition, express or implied, for non-payment
(La.) 58.

of the price, the evicted vendee owes rents
2. A letter, fixing terms of sale of land, and and revenues to the owner who has evicted
expressly referring to an inclosed plat, and to him for the whole time of his possession, and
the prices marked thereon, made the plat and not from the date of the suit for dissolution
the prices affixed a part of the contract, the only.-McKenzie v. Bacon, (La.) 640.
same as if embodied in the letter itself.-Sayre 10. As such a judgment results from the de-
v. Wilson, (Ala.) 157.

fault of the original purchaser, the dissolution

of the sale depends upon an event happening
Description of land.

at a date posterior to the contract, and not
3. A bond for deed described the land as "all affecting its validity ab initio, and of which
the land lying on the north side of Denny's the evicted vendee had no control. Hence his
ferry and Rock Mills road, and four acres on good faith is not affected by the happening of
the south side of said road, containing in all the event giving rise to the dissolution of the
82 acres, more or less; said land off of the N. sale, or by the institution of the suit, which
W.34 of the S. 4 of sect. 13, and a part off of led to the application of the resolutory condi-
the west end of S. 48 of sect. 12, in town 24, tion.-Id.
range 25.” Held that, notwithstanding the 11. In determining the right of the evicted
words, “82 acres, more or less,” and in view vendee to recover the value of improvements
of the uncertainty of description by metes and placed by him on the property during his pos-

session, ordinary repairs, necessary to the en: proper acknowledgment of a deed defectively
joyment of the object sold, cannot be classed executed by the vendor and his wife which
as improvements. --Id.

they have always been willing to make.-Id.
Vendor's lien.

Bona fide purchaser.
12. Where one of two notes taken by a ven- 21. The grantee of land who agrees in con-
dor for the price of land

on which they are a sideration thereof to maintain the grantor, his
lien is assigned by him, and is afterwards father, who is insolvent, for life, cannot re-
paid by a subsequent vendee of the land as sist the foreclosure of a vendor's lien for want
part of the price of his purchase, such subse- of notice thereof, as such an agreement is
quent vendee has a lien to the extent of the fraudulent per se as to creditors, and the
note so paid superior to that of the original grantee is therefore not abona fide purchaser.
vendor under the note retained by him.-Par

sons v. Martin, (Ala.) 467.

22. A purchaser of land, the purchase money
13. Where a conveyance recites that certain for which he knows to be unpaid, is charge-
notes are given as a part of the

purchase price, able with notice of a vendor's lien thereon, as
a purchaser from the vendee is bound to take upon learning of the debt he should have in-
notice of the facts, and cannot defeat the ven- quired as to whether such a lien had been
dor's lien on the ground that he is an innocent waived.--Id.
purchaser. - Thompson v. Sheppard, (Ala.)
14. Unless waived, a vendor's lien exists

against the land of persons to whom the pur: Where action to be brought.
chaser conveys it with his vendor's consent,
for the amount of notes given by the vendor,

1. In Louisiana an action against a railroad
vendee, and subvendees to a third person, in company for damages for injuries resulting
lieu of the original unpaid purchase-money from defendant's neglect to maintain a sutti
notes which were secured by such a lien, and cient crossing, must be brought at the domi-
which were the property of, and surrendered cilę of the company, as such actions are not
by, such third person. - Woodall v. Kelly, within the exception of Code Prac. art. 163,
(Ala.) 164.

subd. 9, providing that “In all cases where

any corporation shall commit trespass or do

anything for which an action for damages
15. The fact that the vendor and vendee lies, it shall be liable to be sued in the parish
signed the new notes with the subvendees where such damage is done or trespass com.
does not waive the lien, when it is mutually mitted.”—Caldwell y, Vicksburg, S. & P. R.
agreed as part of the transaction that the lien Co., (La.) 17.
shall not be relinquished.-Id.

2. Under Code Miss. $ 1847, authorizing suits
16. Notes referred to in a deed as part of the to be brought in the chancery court of the
consideration, which recite that they are county where the property involved may be,
given for the unpaid purchase price, and or in which one or more of the defendants
which are signed only by the purchaser, are resides or is found, or in any county in which
not a waiver of the vendor's lien merely be an action of the same nature might be brought
cause they contain a waiver of the maker's in the circuit court, and providing that suits
personal property exemption.-Thompson v. against an administrator touching the per-
Sheppard, (Ala.) 334.

formance of his official duties, for an account-
17. An oral agreement at the time the note ing, or for distributive shares, etc., may be
was given that the husband's name thereon brought in the county where administration
as personal security should not operate as a was granted, and section 1834, giving juris-
waiver or abandonment of the vendor's lien is diction to the court from which letters of ad-
sufficient to preserve the lien.-Ramage v. ministration were issued to determine all
Towles, (Ala.) 342.

questions relating to the trust, of all demands

against the estate by creditors, distributees,
18. A bill to enforce a vendor's lien, which etc., and of actions on bonds taken in the
describes the property as being the residence ministrator against one to whom he has sold

course of administration,-an action by an ad-
of complainant at the date of conveyance, the personal property of the estate for the
bounded on the east by a designated section purchase price, a bank with which the pur-
line, on the west by a desigpated public road, chaser had deposited the funds for the par.
and' on the north and south by the lands of ment of the debt being also a defendant, can
other persons, and being a part of a small sub- only be brought in the county in which

one of
division of a government section, the number the defendants resides or is found.-Pate v.
of which, and the range, township, county, Taylor, (Miss.) 515.
and state are given, complies with the rule re-
quiring reasonable certainty of description. Change of venue.
Thompson v. Sheppard, (Ala.) 334.

3. Where suit by attachment is instituted
19. A purchaser in possession of land can- in a county other than that of defendant's res.
not recoup damages for breach of warranty of idence, but where one summoned as garnishes
title as to part of the land in a suit to enforce resides, under Code Miss. & 2418, authorizing
a vendor's lien unless his vendor is insolvent. such a proceeding, and not providing for a
- Woodall v. Kelly, (Ala.) 164.

change of venue to the county of defendant's
20. In such case the purchaser cannot com- residence, the granting of a change of venue
plain of a decree of foreclosure if it is con. to the latter county, on the ground that the
ditional upon the perfection of his title by the suit was not brought in the proper county

will not confer jurisdiction on the court of the Nuncupative wills.
latter county.–Baum v. Burnes, (Miss.) 697. 2. Under Rey. Civil Code La. art. 1578, in

the confection of a testament ouncupative in

form, and received by public act, the act must

be received by a notary in the presence of
Change of, see Criminal Law, 8.

three witnesses residing in the parish where

the instrument is made.-Weick v. Henne,

(La.) 528.

3. Such nuncupative wills are full proof of
See Criminal Law, 45, 46.

themselves under Rev. Civil Code La. art.
1647, and must bear upon their faces the evi-

dence that all the formalities required by law

have been complied with. An omission of

any formality cannot be supplied by evidence
Of pleadings, see Pleading, 8.

dehors the testament. Succession of Volmer,

4 South. Rep. 254, affirmed.-Id.


4. Upon that question, as to whether an in-
Liability to mortgagee.

strument conveying property, but showing on
Warehousemen who receive mortgaged its face that the use thereof is reserved dur-
goods for storage from the mortgagors, and ing the maker's life-time, is a deed, or a will,
thereafter deliver them to a third person on the facts that the maker of the instrument
production of the warehouse receipt, are liable was without near relatives, and was attached
in trover to the mortgagee whose mortgages to the donee, who was of her family; that she
are recorded in another county, though they directed the scrivener to write a will, and ex-
have no actual notice of his claim.-Hudmonlecuted the instrument drawn by him, know-
v. Du Bose, (Ala.) 162.

ing its contents, and had it attested, and did

not deliver it, but placed it in an envelope

with an indorsement that it was not to be
opened during her life, -

--are competent evi-
Of chattels, see Exchange, 1, 2.

dence.-Sharp v. Hall, (Ala.) 497.

5. A clause in such an instrument, stating

that it is intended in part to dispense with

the necessity of administration on the maker's

estate, may be considered in determining

whether the maker intended it to take effect
Obstruction of stream, see Logs and Log- during her life.-Id.
ging, 1, 2.

6. The fact that the maker did not dispose

of all her property is likewise admissible on
Injuries to dam Defense under the question of whether she intended the in-

strument as a will.-Id.
An act authorizing the formation of a com- Construction.
pany to open and improve the navigation of a
river, with authority to remove obstructions, "I bequeath to my beloved wife all that lot of

7. A will contained the following provision:
furnishes no defense to an indictment against
the officers of the company for injuries caused ground in N., [describing it,) and I also be-
to a dam by floating logs over it, where it does queath to my beloved wife all my lands known
not appear that the terms of the act have been as Prospect Hill' plantation, ” together with
complied with.-Olive y. State, (Ala.) 653.

certain personal property thereon, “including
all the house servants except those conveyed
to M. and J. by me this day.


bequest is subject to a legacy to M. and J. of

$300 per annum.” Held, that only the “Pros-
Right of, see Easements, 1, 2.

pect Hill” plantation was subject to the leg.

acy.-Carroll v. Botsai, (Miss.) 823.
Wife's Separate Estate.

8. One clause of a will devised to H., a

house, some jewelry, a portion of the furni.
See Husband and Wife, 3-17.

ture, and silver-ware, and added H. “to have
all that I don't make any disposition of.” By

another clause after the payments of debts,

and sale of certain real estate, H. was to have

$2,000, “the balance to be divided between ”L.
See, also, Executors and Administrators. and J. Held that H. receives the balance of

the furniture and silver-ware not disposed of,
Validity and requisites.

and L. and J. the balance of the money de-
1. An instrument conveying property, but rived from the sale of the real estate.-Suc-
showing on its face that the use thereof is re- cession of Bobb, (La.) 757.
served during the maker's life-time, may be 9. A will by which the testator bequeaths
either a deed or will, the class to which it be- the usufruct of part of his property to his
longs being determinable upon all the circum- wife, wishing it to continue in others after
stances surrounding the parties and aitending the death of his wife, and gives the naked
its execution.-Sharp v. Hall, (Ala.) 497. ownership of such part and the full owner-

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