I kept my seat all the time (witness leaned over and indicated how he had to move to start the bell ringer and to open the throttle). I don't know Harry Cline except when I saw him here on the witness stand." verity. The posture of Moran's body across the west rail after the train had gone is likewise ineffective to contradict or to reflect upon the credibilty of the positive testimony that Moran was not in front of the engine when it was moved away from the station. The testimony of Hodges that the next morning he saw marks as if something had been dragged along the ties or the track, and that he saw a discoloration that looked like blood along there, is likewise ineffectual for the purpose of instituting a conflict with such positive testimony or of casting a reflection upon its credibility. To say that either of these features of the testimony is efficient to reflect upon testimony otherwise without con The statute, as appears, does not require the lapsing of any period of time between the ringing of the bell and the starting of the engine or that the bell shall ring any particular space of time before the engine is moved. The statute's command was obeyed by Allen when, according to the undisputed testimony, he put the automatic air bell ringer into operation, and thereby rang the bell and then started the engine. Certainly the observance of the statute's command in this regard precluded an imputation of negligence in the absence of particular circum-tradiction in any degree would be to visit stances known to the operatives on the engine. The evidence is undisputed that both Allen and the fireman did look in front of the engine before it started, and that they saw no one there; that there was no one in front of the engine. It is insisted that the court below could not, and properly did not, accept as indisputably proven these vital matters to which the two operatives on the engine pointedly testify. It is further insisted that the fact was also uncontradictedly proven that MorIan's left leg was broken at a point between the ankle and the knee, at which the cow catcher's frame would have come in contact with his leg on the side next to the engine if he was then crossing the track in front of the engine, from the east to the west side of the track, and if the engine had been moved against him. This latter insistence could not, of course, be accepted, based as it is solely on the location of the break in the left leg, with reference to the cowcatcher's elevation, and on the presence of wounds on his body below the waist that are not traced by any fact or circumstance in the evidence to contact with the engine's parts, if the positive evidence that Moran was not in front of the engine when it moved away from the station is free from reflection or contradiction. This reflection upon its credibility or its contradiction is not afforded by any or all of the wounds on his body. It would be a pure speculation to attribute the wound on the left leg to contact with the cowcatcher. That wound's or break's undoubted existence is not at all inconsistent with the positive evidence that Moran was not where the cowcatcher could so injure him as the train left the station. It was a wound that might have been received otherwise; might have been received when Moran was beneath the trucks of the coach or coaches. [4] A mere possibility that a result might have been wrought in a certain way or by certain means cannot serve to contradict or to reflect upon the credibility of positive testimony of facts (not opinions) that is otherwise not impeached or rendered of doubtful upon the consideration of the evidence a method that could only be speculative. The other suggestions in brief which are thought to reflect upon the credibility of the engineer and the fireman have been carefully reviewed. These suggested contradictions, etc., are without merit; they institute no conflict; they import no reflection upon the credibility due to be accorded uncontradicted testimony. Mobile Light Co. v. Roberts, 192 Ala. 486, 68 South. 815. Through undisputed evidence, free from adverse inference, the defendant discharged any obligation imposed upon it as the result of the provisions of Code, § 5476, under the allegations of amended count 1. [5] There being no ground in the evidence on which the jury could rest a finding that the proximate cause of Moran's injury and death was the negligence charged in amended count 1, for which the defendant was responsible, the court erred in refusing the general affirmative charge for and requested by the defendant. The judgment is reversed, and the cause is remanded. Reversed and remanded. ANDERSON, C. J., and MAYFIELD, SAYRE, and SOMERVILLE, JJ., concur. GARDNER and THOMAS, JJ., dissent. METCALF v. CLEMMONS-POWERS & CO. May 24, 1917.) 150(1)—RECORD CONSTRUCTIVE NOTICE. Whatever rights the mortgagee acquired through a subsequent mortgage on crops were subordinate to the rights of prior mortgagees acquired through a previously executed and reforded constructive notice to the subsequent corded mortgage, the registration of which af mortgagee of its existence. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. §§ 246-248, 252.] 2. CHATTEL MORTGAGES 150(1)-DUTY OF PRIOR MORTGAGEES-NOTICE TO SUBSEQUENT MORTGAGEE. There was no obligation on the prior mortgagees of a crop to notify a subsequent mort gagce of the existence of their claim, notice of 3. DISCOVERY 19-PLEADING AND PROOF. TORIES-STATUTE. 19-PLEADING-INTERROGA A bill seeking discovery, and relief consequent thereupon, or discovery only, disclosing on its face that complainant's adversary had answered interrogatories propounded in a pending action at law under the statutory system for the examination of one party by another prescribed by Code 1907, § 4049 et seq., in disclosure of the relevant material matters sought to be discovered through answer to the bill, is subject to demurrer. [Ed. Note. For other cases, see Discovery, Cent. Dig. §§ 20-26.] 5. DISCOVERY 3-EQUITY OF BILL-REMEDY AT LAW BY INTERROGATORIES STATUTES. Where complainant, who filed bill for discovery and relief, could have secured all the desired evidence of facts, as well as books, etc., through the use, in actions at law pending against him, of the statutory system for the examination of one party by another through interrogatories, prescribed by Code 1907, 4049 et seq., the bill did not have equity. [Ed. Note. For other cases, seo Discovery, Cent. Dig. §§ 3, 4.] 6. CHATTEL MORTGAGES MORTGAGOR. 17-INTEREST OF The mortgagor of land to a loan company, who, when he executed a subsequent crop mortgage, and when he brought the crop into existence and gathered it, was in possession of the land, had such an interest that he could mortgage the crops to grow or that were grown thereon. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. §§ 55-58.] 7. CHATTEL MORTGAGES 129-SECURITY OR CONVEYANCE. In a court of equity, a mortgage is a security, and not a conveyance, in the sense that title is thereby divested. [Ed. Note. For other cases, see Chattel Mortgages, Cent. Dig. § 216.] Appeal from Chancery Court, Geneva County; O. S. Lewis, Chancellor. Suit by P. M. Metcalf against ClemmonsPowers & Co. and others. From a decree denying relief, complainant appeals. Af firmed. March 23, 1907. On November 27, 1907, J. W. Clemmons executed another mortgage to appellant for $2,000, covering the crops to be grown by him in Geneva county for the year 1908. From the crop (1908) so grown by this mortgagor the appellant bought from the mortgagor 16 bales of cotton, and applied the proceeds to Clemmons' indebtedness to appellant. The appellees brought their action for damages against the appellant for the thus wrought destruction of the lien, resulting from their mortgage of date March 4, 1907. This court reversed the judgment rendered in favor of defendant in that action; the conclusion being that the plaintiffs were due the general affirmative charge. Clemmons v. Metcalf, 171 Ala. 101, 54 South. 208. [1] Whatever rights the appellant acquired through his subsequent mortgage from J. W. Clemmons were necessarily subordinate to the rights of appellees acquired by them through the previously executed and recorded mortgage by J. W. Clemmons; the registration thereof affording constructive notice to appellant of its existence at the time he took the mortgage of date November 27, 1907. Haislip v. Brannon, 73 South. 464; Mayer v. Taylor, 69 Ala. 403, 44 Am. Rep. 522; Clemmons v. Metcalf, 171 Ala. 101, 103, 104, 54 South. 208. After reversal of the judgment in the law court this bill was filed by Metcalf; and, in accordance with its prayer, the further prosecution of the action at law was enjoined. The chancellor denied all relief under the bill. In one of its features reformation of the mortgage to appellees, of date March 4, 1907, is sought on the ground that the inclusion therein of the crops to be grown by J. W. Clemmons during the year 1908 was not contemplated or intended by the parties thereto. It is very clear from the evidence that this feature of the bill was not sustained in the proof. Indeed, the contrary is the only conclusion reasonably possible from the evidence. [2] Another feature of the bill is predicated of an asserted estoppel against appellees to maintain any claim or right under their previously executed mortgage because they, with knowledge that appellant had taken his subsequent mortgage from J. W. Clemmons and was furnishing supplies to J. W. Cleminons to make his 1908 crop, did not warn or advise appellant that they had and relied on an antecedently executed and recorded mortgage on J. W. Clemmons' crop for the year 1908, and intended to look to it as a means of satisfying J. W. Clemmons' indebtedness, thereby secured, to the appellees. On the appeal from the judgment at law (171 Ala. 101, 54 South. 208) the court held that no waiver or estoppel was shown. The registration of the appellees' mortgage bore constructive notice to appellant of the existence of a right superior to any appellant might acquire through a subsequent W. O. Mulky, of Geneva, for appellant. C. D. Carmichael, of Geneva, and W. R. Chap man, of Dothan, for appellees. MCCLELLAN, J. On March 4, 1907, J. W. Clemmons executed to appellees a mortgage to secure an indebtedness of $750 on his crops to be grown in Geneva county in the year 1908. This mortgage was recorded on mortgage by Clemmons to appellant. There was no obligation on appellees to notify the appellant of the fact notice of which the operation of the registration laws imputed to him. It is not proven that the appellees waived, surrendered, in any way, their right under the mortgage or that they misled appellant to his prejudice in the premises. Clemmons v. Metcalf, 171 Ala. 101, 104, 105, 54 South. 208. His predicament must be attributed, under the effect of the evidence, to his own want of care for his own interest, as in the ordinary case where a second mortgagee parts with value on its faith when the registration of a superior mortgage operated to impute to him constructive notice of the existence thereof. cordance with the requirements of the system. Code, § 4049 et seq. The requisites to the construction of an efficient bill of discovery and relief include, as stated, the averment that the complainant cannot prove the facts of which he would have discovery otherwise than through the defendant's answer. While this element is necessary to be averred in order to properly invoke the jurisdiction of a court of equity in such circumstances, the judicial duty still pervades to determine, in the concrete cause presented, whether the averment of the complainant's entire inability to establish the fact, of which discovery is sought, otherwise than through the defendant's answer, has been, in fact, proven. It is manifest that the averment is not proven, cannot be established when the full privilege is available to the complainant (defendant in the pending action at law) to file interrogatories to his adversary under the statutory system (Code, § 4049 et seq.), and thereby draw from his adversary a written response containing every relevant fact or circumstance that could possibly be ascertained and made available by the defendant's answer to a bill of discovery. The authority of the court of law to enforce answers to interrogatories propounded under the statutory system is adequate, designedly effective. Code, § 4055, which provides: "If answers to the interrogatories are not filed within thirty days after service of a copy of the interrogatories, or when the answers are not full, or are evasive, the court may either attach the party and cause him to answer fully in open court, or tax him with so much costs as may be just, and continue the cause until full answers are made, or direct a nonsuit or judgment by default or decree pro confesso to be entered, or render such judgment or decree as would be appropriate if such defaulting party offered no evidence." [3] Neither of the two features of the bill, to which reference has been made, were sustained. Hence error in the decree cannot be found on that account. The chief reliance for a right to equitable relief is involved in an appeal to the powers of a court of equity to give discovery, indispensable to the protection or assertion of complainants' rights in the premises and upon a jurisdiction thus invoked to proceed to a complete adjudica- | tion and adjustment of the issues and rights of the parties. Sims, Ch. Prac. (Ala.) § 668. In cases where the object sought by the bill is discovery and relief-even though the only relief desired is the inhibition of a further prosecution of an action at law-the complainant's obligation is to aver, and to sustain the allegation, not only the materiality of the matter of which he would have discovery, but also that it is indispensable to the establishment of his cause or defense, and that he is unable otherwise to make his proof. Shackelford v. Bankhead, 72 Ala. 476; Wolfe v. Underwood, 96 Ala. 329, 332, 11 South. 344, and other decisions noted [4] Certainly, it could not be affirmed that under section 668 of Mr. Sims' work. The bill of discovery was the only available means matter of the discovery desired is the state to afford proof of a fact in a pending action at of the account-the true amount of the in-law, through a defendant's answer, in the debtedness between J. W. Clemmons and the face of a complete means to the same end furappellees, secured by their mortgage of date nished and made readily available by positive March 4, 1907, on the crop for the year 1908; statute. Indeed, a bill seeking discovery and the complainant's contention being that the relief consequent thereupon, or discovery value or amount of that indebtedness would, only, that disclosed on its face that a comin any event, fix the limit of appellant's lia- plainant's adversary had answered interrogability for the destruction of the lien of the tories propounded in a pending action at law appellees on the 16 bales of cotton bought under the statutory system (Code, § 4049 et by him in the fall of 1908. It is true this seq.) in disclosure of the relevant, material court has held that the enactment of the matters sought to be discovered through anstatutory provisions for propounding inter-swer to the bill, would, beyond doubt, be subrogatories by one party to another (Code, §ject to demurrer, for that such a bill would 4049 et seq.) in civil actions and equitable itself bear the affirmative assertion of its causes did not abrogate the jurisdiction of own want of necessity. The motive for the the courts of equity to enforce discovery creation of, and the foundation of the con(Handley v. Heflin, 84 Ala. 600, 4 South. 725; ception underlying, the jurisdiction in equity Shackelford v. Bankhead, 72 Ala. 476). See to compel discovery was the fact that no Pomeroy's Eq. (3d Ed.) §§ 193-195. This remedy at law existed to afford this necessacourt is committed to this view of the mere ry relief. 1 Pom. Eq. § 195. So when, as ly cumulative effect of our statutory system with us, adequate statutory method, available for the examination of one party by another in the courts of law, is provided and exists, to this jurisdiction of equity, in pending ac- could mortgage the crops to grow or that tions at law, has been abrogated. were grown thereon. 1 Jones on Mort. § 136; Heard v. Heard, 181 Ala. 230, 61 South. 343; Field v. Karter, 121 Ala. 329, 25 South. 800. Furthermore, in a court of equity a mortgage is a security, not a conveyance in the sense that title is thereby divested. The circumstances under which this court held in Thompson v. Union Warehouse Co., 110 Ala. 499, 18 South. 105, that the subsequent crop mortgagee was without right to crops maturing after default by the mortgagor in his obligation given to the prior mortgagee of the land, were not present in the allegations made in the amendment to the bill. There the mortgagor had surrendered the possession of the premises to the mortgagee; and default had intervened to perfect, in a court of law, the absolute title of the land mortgagee to the land on which the crops were [5] Our conclusion, therefore, is that the appellant's cause could not be restrained upon the theory that discovery was his due, since all evidence of facts as well as books, etc., that could have been made available through the answer of the defendants to the bill (plaintiffs in the pending action at law) could have been secured and were and are made as readily available through the use, by the complainant, of the statutory system, to the same end in pending actions at law. Hence no error affects the decree in consequence of any erroneous conclusion with respect to the feature of the bill that depends upon discovery for its lead to equity jurisdiction or to relief in that forum. Since the merit, the equity, of the bill in this aspect rests entirely upon discovery and seeks relief only consequent upon a jurisdiction thereby alone invoked, then growing. That decision is without effect it is clear that recourse to principles applica- or influence on the question decided by the ble where the bill asserts some other ground special chancellor. of equitable cognizance cannot be had; the right in equity to the discovery is not justified. There is no error underlying the decree. It is affirmed. Affirmed. All the Justices concur. (8 Div. 938.) (Supreme Court of Alabama. June 7, 1917. The complainant amended his bill by adding paragraphs 12 and 13. The allegations therein made evince this theory: That since, PACIFIC MUT. LIFE INS. CO. v. HAYES. previous to the execution, on March 4, 1907, of the mortgage to appellees, J. W. Clemmons had executed to a loan company a mortgage on the land on which the 16 bales of cotton in question were grown during the crop year 1908, and since the mortgage executed by J. W. Clemmons to appellant, on November 27, 1907, was made to cover the same land that was incumbered by the mortgage to the loan company, J. W. Clemmons had no such title or interest in the land on which this crop was raised, and hence no such title to or interest in the crop, as would or could invest the appellees with any right under their mortgage of date March 4, 1907; the assertion of this theory involving the complainant in the necessity, it seems, to allege that the two mortgages of the land—one prior and the other subsequent to the mortgage to appelleesoperated together to divest J. W. Clemmons' legal title and his equity of redemption, and the avowal following therefrom that J. W. Clemmons' mortgage to appellees was vain because J. W. Clemmons had no interest in the land or crops he could mortgage. The special chancellor held that the amendment was without merit in equity, and sustained the demurrer. [6, 7] J. W. Clemmons, both when he executed the crop mortgage on March 4, 1907, to appellees and when he brought the crop into existence and gathered it, in the year 1908, was in possession of the land. The loan company had not even foreclosed. Having the character and quality of interest in and title to the land J. W. Clemmons had at these periods, he held such an interest as that he In suit on a life policy, plea 3 alleged that insured failed to pay a premium which the policy stipulated he should pay, or else the policy should become lapsed and void, unless it should be reinstated by insured's warranty of good health and condition, that after the policy lapsed ment, executed a warranty that he was at the and became void insured, to procure reinstatetime in all respects in good, sound, and unimpaired health and condition, that he had not within a year consulted any physician, surgeon, health or condition, and that it was his underor other practitioner respecting his mental standing that the company accepted payment of the premium and issued its receipt in consideration of the warranties made. Defendant further averred that the warranty was breached and the policy rendered void in that insured, when he signed the warranty, was afflicted with heart disease, from which he soon died, and the company tender plaintiff the amount of the premium. Other pleas adopted the averment of plea 3, except as to the breach of warranty, and as to that merely changed the character of the disease. Held, that demurrers to the pleas were properly sustained. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1617, 1618.] 2. INSURANCE 641(1)-LIFE INSURANCESUIT-PLEADING. In such suit, defendant's rejoinder to plainwhich it became incorporated, held to present tiff's replication, taken as part of pleas with a sufficient issue of fraud in the reinstatement of the policy of insurance, after it lapsed for nonpayment of premium under Code 1907, § tion or proof of loss. 4572, relative to misrepresentation in applica [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1554, 1626, 1628, 1629.] 3. INSURANCE INSTRUCTIONS. ›669(7)—LIFE INSURANCE said policy lapsed and became void, he, said Maynor, to procure reinstatement of said insurance, executed the following warranty of present health and condition, which is as follows: In suit on a life policy, the insurer, defending on the ground that insured had breached his warranty of his state of health when applying for reinstatement after the policy had lapsed, requested the court to charge that though insured may not have known that he had heart dis- Arthur J. Maynor of New Decatur, Ala., to ease when he signed the warranty, yet if he did whom policy No. 244486 was issued by the Paknow that he was sick, and if he knew that he cific Mutual Life Insurance Company of Calirecently or since his original examination con-fornia, a premium on which was due on Sepsulted with a physician, and if he did know that tember 7, 1913, hereby warrants that he is at he was really sick when he did so, it was his this time in all respects in good, sound, and unduty to have correctly stated that he did con- impaired health and condition; that he has not sult a physician, and if he failed so to do his within one year prior to the date hereof confailure was a misrepresentation and conceal- sulted any physician, surgeon, or other practiment of a matter tending to increase the risk of tioner respecting his mental health or condiloss, and verdict must be for defendant. De- tion; and that it is the insured's understanding fendant also requested the charge that if the that said company accepts at this time payment jury found insured did not pay the premium on of said premium, and issues its receipt therefor the day it was stipulated for, and if they believ- solely in consideration of the warranties herein ed that insured executed the alleged warranty, made. and further believed that he tendered to defendant the premium due on the policy, and that defendant accepted the premium, and if they further believed that insured was then sick and knew it, or that he had consulted a physician, and defendant did not know he was sick, and that he had consulted a physician, verdict must be for defendant. Held, that the instructions were properly refused as not complying with the rule that a mere misrepresentation to avoid a policy must have been made with actual intent to deceive. [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1774-1776.] 4. INSURANCE 271-FRAUD-EFFECT. The effect of false statements amounting to a fraud to avoid a contract of life insurance is not dependent on the fact that they were made by the person suing on the policy, or that they were made without his knowledge. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 571.] 5. INSURANCE 271-FRAUD-EFFECT. [Ed. Note.-For other cases, see Insurance, Cent. Dig. § 571.] 6. INSURANCE 669(7)-LIFE INSURANCE ACTION-INSTRUCTIONS. In suit on a life policy defended for insured's breach of warranty as to health when applying for reinstatement after lapse for nonpayment of premium, under the pleadings and evidence the extent of the participation of plaintiff beneficiary in the reinstatement of the lapsed policy was a material inquiry for the jury, and it should have been properly instructed on such phase of the case. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1774-1776.] Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge. Action by Mrs. E. M. Hayes against the Pacific Mutual Life Insurance Company. Judgment for plaintiff, and defendant ap peals. Reversed and remanded. I'lea 3 alleged: That insured, Arthur J. Maynor, failed to pay the premium which said policy stipulated he should pay September 7, 1913, or else said policy should become lapsed and void, unless the same should be reinstated by Arthur J. Maynor's warranty of good health and condition. That after And defendant avers that said warranty was breached, and thereby the policy rendered void in this: That the said Arthur Maynor was at the time he signed said warranty afflicted with heart disease, from which he soon thereafter died. And with respect to the premium paid, in connection with said warranty of present health and condition, to procure a reinstatement of said policy, defendant tendered to plaintiff the amount due to her, to wit, $23.02, before this action was commenced, and now brings the money into court. The other pleas are 4, 5, 7, 8, 9, and 11; and they adopt the averments of plea 3, except as to the breach of warranty, and that is practically the same, merely changing the character of the disease. The other pleas and replications, together with their rejoinders, sufficiently appear. The health certificate appears in plea 3. The following charges were refused to defendant: (6) The court charges the jury that although Maynor may not have known that he had heart disease when he signed the warranty of present good health and condition, yet if he did know if he was sick, and if he knew that he recently, or since his original examination for insurance, advised with or consulted a physician with respect to his health, and if he did know that he was really sick when he consulted said physician, the court charges the jury that it was his duty to have correctly stated that he did consult a physician, and if he failed so to do his failure was a misrepresentation and concealof loss, and the verdict must be for defendant. ment of a matter tending to increase the risk (29) If the jury find from the evidence that said Maynor did not pay said premium on the day that it was stipulated that it should be paid. as set out in replication 2, and if they believed further from the evidence that said Maynor executed the alleged warranty as set out in replication 2, and if they further believe from the evidence that he tendered to defendant the premium due on said policy, and that defendant accepted said premium, and if they further bethen sick and knew that he was sick, or knew lieve from the evidence that said Maynor was that he had consulted or advised with a physician, and if defendant did not know that he was sick, and did not know he had consulted and advised with a physician, then the verdict must be for defendant, and you cannot find for plaintiff on replication 2. |