We

proved the payment, to show that the defendant had notice of the transfer or indorsement before the payment was made. cannot perceive that the fact that payment of the note in controversy was made before maturity takes the case without the influence of the decision in Hart v. Freeman, supra. The testimony in the record shows that both Mrs. Moore, the maker of the note, and the Woodlawn Cemetery Company, deny all notice of the transfer of the note by Vann to Marbury. On the other hand, W. C. Ward, attorney for Marbury, testifies that he notified Mrs. Moore of the transfer of the note to Marbury at the time, or shortly after, it was made, by addressing her and her husband a letter through the post office at Birmingham or Avondale, (the latter according to the best of his recollection,) and that the letter was never returned to him, although the envelope in which it was inclosed had his name and address thereon. If we may take judicial cognizance of the postal regulation or custom to return undelivered letters to sender, when there is a printed or written request to that effect, and the address of the sender on the envelope, we cannot consider this testimony as satisfactory or conclusive on the question of notice of the transfer of the note, in the face of Mrs. Moore's positive denial of notice, and the further fact that the burden of proof rests upon the complainant to establish notice. In the first place, the witness does not state that the postage was prepaid on his letter. In the second place, it appears from Mrs. Moore's testimony that she, at the time the letter was sent, received her letters from the Birmingham post office, instead of at Avondale, where she resided. In the third place, if it had been stated by Mr. Ward that his letter was sent postage prepaid, and to the proper office, it would simply have made out a prima facie case of notice, which is overcome by the positive and unequivocal denial of Mrs. Moore that she ever had notice of such transfer. We discover nothing in the testimony which disentitles her to full credit as a witness, and in accepting her denial of having received notice we do not in any wise discredit the testimony of Mr. Ward. The testimony of the two can be reconciled upon the theory that Mr. Ward's letter went to the post office at Avondale, where Mrs. Moore was not accustomed to receive her letters; or that the letter was not prepaid, or was lost in the Birmingham post office, or delivered to some person who failed to hand it to her. Appellee further insists, howver, that both Mrs. Moore and the Woodlawn Cemetery Company were either notified of the transfer of the note or acquired knowledge of facts sufficient to put them on inquiry at the time the payment by Mrs. Moore was made, and the purchase by the Woodlawn Cemetery was concluded; that the receipt itself, given by Vann to Mrs. Moore on that occasion, recited that the note in con

troversy was then in the hands of W. C. Ward. A careful review of the testimony fails to satisfy us that this contention is supported by the proof. On the contrary, Mrs. Moore swears: "Vann did not say my note was out when he made the trade, but said so when he delivered my paper. When I delivered the deed to Erswell, Vann did not tell me that the note was out. The note was handed me in Vann's office. I never heard him say anything in presence of Erswell about the note being out, and nothing in that of Nash, except in his office." Nash, in his testimony, shows that the money and stock were paid to Mrs. Moore, and the deed delivered by her to Erswell in his office, before Mrs. Moore, Nash, and Vann went to the latter's office; and we think it appears this was all done on the faith of Vann's statement that the notes and mortgage were in his office. Nash says: "Mr. Erswell, Mr. Vann, Mrs. Moore, and myself were the parties present at Mr. Erswell's office when the payment was made. The notes and mortgage were at Mr. Vann's office, so he said at the time. I went up to Mr. Vann's office with Mrs. Moore, when she received one note and the mortgage, I think. She also received a receipt for the other note, which he said was then misplaced, but he would surrender it in a day or So. Later on he made various statements as to the note," etc. And again, on cross-examination, he says: "I was present when Mrs. Moore executed the deed to the W. C. Co. Mrs. Moore was paid $358 cash, and $3,800 in stock, and she paid Vann $2,800 stock. The W. C. Co. paid him nothing. After the stock had been transferred to Vann by Mrs. Moore she demanded the notes from Vann, and she went up to Vann's office to get them; but she only received one, and a receipt for the other. He said that note was then misplaced, and promised to deliver it to her in a day or so. Am quite sure he did not say it was in Ward's hands or any other person's hands at that time." Erswell is also examined, and coroborates Nash as to the conclusion of the trade at Erswell's office, and the statement then made by Vann that the notes were at his office, and the fact that Vann, Mrs. Moore, and Nash left Erswell's office to go to Vann's office. We cannot discover from the testimony that Nash read the receipt given by Vann to Mrs. Moore for the note in controversy, or that Nash there learned any fact which would have put him on inquiry, unless it was the one fact that the note here in suit was not actually produced and surrendered.

So far as the Woodlawn Cemetery Company is concerned, it not appearing that the receipt showing that the note was then in Ward's hands was shown to Nash, we think the statements made by Vann, in the hearing of Nash, both at that time and at Erswell's office, that the note was mislaid, and would be surrendered in a day or two, dis

armed all suspicion on Nash's part that the note had been transferred. Indeed, if inquiry had been excited, of whom would he have made it? He could not have gone out into the community generally to make such inquiry. He could have gone to no one except to the mortgagor and mortgagee, and it is apparent from this record that inquiry of either of them would have been unavailing, in the light of the testimony in this record. And, so far as Mrs. Moore is concerned, it may be said that the statements of Vann to her, before and accompanying the delivery of the receipt for the note, might justly be said to have disarmed any suspicion which, without such statements, the recital in the receipt that the note was in Ward's hands ought to have excited in her mind. Brown v. Blydenburgh, 7 N. Y. 142146. It is to be observed this receipt does not recite that the note had been transferred to Ward, but that it was in his hands. If this recital stood alone, it may be it was sufficient to put Mrs. Moore on inquiry, and that she would be chargeable with notice of all facts inquiry from Ward would have elicited; but, in connection with Vann's statements at the time of the payment, and also accompanying the delivery of the receipt, the most natural inference Mrs. Moore could have drawn from such recital in the receipt would have been that the note was in Ward's hands, not as transferee, but as agent for Vann; and that it had been mislaid. We see no escape from the conclusion that Vann's declarations and conduct were intended, and naturally had the effect, to quiet suspicion, and prevent inquiry by Mrs. Moore and the officers of the Woodlawn Cemetery Company, and sufficiently excused their failure to demand the production and surrender of the note. Brown v. Blydenburgh, supra; 1 Jones, Mortg. § 791; Van Keuren v. Corkins, 6 Thomp. & C. 355.

The question with which we have mainly to deal in this case is not whether the mortgage can be enforced as to this note against Mr. and Mrs. Moore, or whether they are liable personally to Marbury on the note, but whether the note is enforceable in this suit as a lien on the land as against the Woodlawn Cemetery Company, the purchaser of the land. Its attorney examined the title, and found no incumbrance except the mortgage from Mrs. Moore and her husband to Vann, securing the two notes. So far as the record showed, therefore, Vann was the proper party to whom payment of the mortgage debt should be made, and who had the right to cancel the mortgage. In Ogle v. Turpin, 102 Ill. 148, it is said: "There is no

presumption of law that the payee of notes secured by mortgage has transferred the notes before purchasing the equity of redemption from the mortgagor, and a person taking a mortgage from the payee will not be held chargeable with notice that the notes secured in the first mortgage, although not

due, have been assigned, but he may rely upon the record as showing title in his mortgagor." This we think to be the correct rule, except where the mortgage shows upon its face the negotiable character of the notes it secures, in which event it might be incumbent on a subsequent purchaser to inquire as to whether the notes have been assigned. Keohane v. Smith, 97 Ill. 156; 1 Jones. Mortg. § 814. The mortgage before us do... not describe the notes, or otherwise indicate their character. In the absence of proof of notice to the Woodlawn Cemetery Company of the transfer of the note to Marbury, or of facts sufficient to put it on inquiry, the principles which govern the respective rights of Marbury and said company in this controversy may be briefly stated as follows: By the transfer of the note from Vann to Marbury under the circumstances above shown, the latter acquired an interest in the mortgage security which he was entitled to assert as against both the mortgagor and the mortgagee so long as the security subsisted. This being so, the cancellation of the mortgage on the records by Vann, it cannot be doubted, was a fraud upon the rights of Marbury, and the latter's rights remained unaffected as against all parties participating in, or cognizant of, the fraud. But, as between Marbury and the Woodlawn Cemetery Company, the question here presented is whether Marbury's rights are such that they can be asserted against a bona fide purchaser from the mortgagor, who, without notice of the claim of Marbury, has parted with its money relying upon the payment and cancellation of the only claim upon the land disclosed by the record, and which payment was made to, and cancellation made by, the party whom the record showed to be the proper party for such purposes. As we have said, the transfer of the note vested in Marbury no legal title to the land, but simply an equity. The legal title to the conditional estate in the land remained in Vann as fully after the transfer as before. This legal title, it may be, he held in trust for Marbury to the extent of the note held by the latter; but it was a trust not appearing from the mortgage itself, or by any record, but a latent trust, which could not affect the rights of bona fide purchasers, who, in ignorance of its existence, relied on the acts and declarations of the mortgagee within the scope of his apparent powers as legal owner of the mortgage; and any such acts of the mortgagee as would work an estoppel as against him would be equally effective against the holder of a latent equity arising from contract with the mortgagee. Swartz v. Leist, 13 Ohio St. 419.

Without discussing the question further, our conclusion is that Marbury, being a holder of the note as collateral security for an antecedent debt, and the mortgage failing to show that the note was negotiable, and the payment of the entire mortgage debt having

been made by Mrs. Moore, and the purchase made by the Woodlawn Cemetery Company, in good faith, without notice by either of the transfer of the note, and in reliance upon the fact that the payment was made to, and the surrender of the mortgage by, the party whom the record showed was the proper party, and who then represented himself as the owner of the note, and that it was temporarily mislaid, such payment and purchase defeat the right of the transferee, Marbury, to subject the land to the payment of the note, notwithstanding the failure of Mrs. Moore and the officers of the Woodlawn Cemetery Company to require the production and surrender of the note at the time of such payment and purchase. The decree of the chancery court is not in accordance with our conclusion. It is therefore reversed, and a decree will be here rendered denying relief to the complainant in the court below, and dismissing the bill of complaint. Reversed and rendered.

SELLERS et al. v. FRIEDMAN et al. (Supreme Court of Alabama. Dec. 1, 1893.) CHANCERY COURT-JURISDICTION-SALE FOR PARTITION.

Code 1886, § 3262, providing that the chancery court shall have concurrent jurisdiction with the probate court to sell for division or partition property held by joint owners or owners in common, does not give the chancery court jurisdiction of a suit for sale of land for partition, where a defendant holds possession adversely under a claim of title founded on disputed facts; neither court having jurisdiction of such action, independently of such statute.

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs, Judge.

Suit by C. A. C. Sellers and others against B. Friedman and others for sale of land for partition. On the pleadings and proof, the bill was dismissed. Complainants appeal. Modified and affirmed.

The bill alleged that the complainants and the defendant J. J. H. Sellers were the sole heirs of their mother, Mrs. P. M. C. Sellers; that the said Mrs. P. M. C. Sellers died seised of a certain described property; and that the complainants and the said defendant J. J. H. Sellers, being the only heirs, are entitled to have the property partitioned equally, and therefore prayed that a sale of said lands be had for that purpose. The bill also averred that on the 11th of May, 1883, the said J. J. H. Sellers filed his petition for the partition of said lands in the probate court of Tuscaloosa county; that upon the hearing of said partition an order of sale of said lands was granted, and commissioners appointed to make said sale; and that on July 13, 1883, in pursuance of said order of the court, the commissioners made what the bill alleged was a pretended sale of said land, at which sale B. Friedman & Co. became the purchasers. The bill

further alleged that this pretended sale was null and void because some of the complainants, who were then minors, had no notice of said petition, and were not represented at the hearing of said cause, or at the sale, and that B. Friedman & Co., who were the nominal purchasers, had never paid the amount bid at said sale. The bill further averred that the said Mrs. P. M C. Sellers owned the lands through two separate deeds from her husband, Isaiah Sellers, which two deeds recited a consideration that the said Isaiah Sellers had purchased the lands with the money of said Mrs. P. M. C. Sellers, which was her statutory separate estate. In the answer of the defendants these material allegations of the bill were denied, and it was alleged in said answer that the deeds from Isaiah Sellers to Mrs. P. M. C. Sellers were null and void, as being fraudulent conveyances, and made for the purpose of hindering, delaying, and defrauding the creditors of the said Isaiah Sellers; that B. Friedman & Co. claimed title to the land in controversy (1) through the sheriff's deed at a sale under execution levied upon the said property under a judgment recovered against the said Isaiah Sellers; (2) through a quitclaim deed from Isaiah Sellers to said B. Friedman & Co.; (3) through certain tax deeds. The defendants, in their answer, also alleged the possession and adverse holding of said property.

J. J. Mayfield, for appellants. Wm. Cochran Fitts and O. Somerville, for appellees.

COLEMAN, J. The bill was filed by appellants for the purpose of obtaining a decree for the sale of land for partition. The answer and evidence raise the question as to whether the chancery court has jurisdiction to sell land for partition, where it is resisted by an adverse claimant in possession. The decisions of this court on this proposition are not in harmony, and it becomes necessary to consider the question again. It cannot be doubted that, from the earliest decision of this court down to the adoption of section 3262 of the Code of 1886, the chancery court did not have jurisdiction to sell lands for division or partition. Delony v. Walker, 9 Port. (Ala.) 497; Harkins v. Pope, 10 Ala. 493; Wilkinson v. Stuart, 74 Ala. 198. The jurisdiction of a court of equity to decree partition of lands cannot be questioned, but this jurisdiction did not extend to cases where the legal title of plaintiff was denied, and its validity depended upon questions of fact, which were controverted. In such cases, partition was not decreed until the titles were settled in a proper forum. Horton v. Sledge, 29 Ala. 478. This was the law and practice until the adoption of the statute now embodied in section 3588 of the Code of 1886, by which it is provided, in cases for partition in the chancery court, that when the defendant

denies the title of the plaintiff a jury may be summoned to attend the chancery court, to determine the issue of fact. Section 3588, supra, has been frequently considered. Its application is confined to cases for partition of land. It has no reference to cases where the purpose is to obtain a decree for the sale of land for partition. These questions were elaborately considered in the case of McMath v. De Bardelaben, 75 Ala. 68, and satisfactorily determined. Under the law as it then existed, neither the chancery court nor the probate court had authority to decree a sale of lands for partition or distribution, where the sale was resisted by one in possession, holding under an adverse title resting upon disputed questions of fact. It is not pretended that jurisdiction, in such cases, has ever been conferred upon the probate court. In fact, it is expressly denied. Has such jurisdiction been conferred upon the chancery court? The only authority for claiming such power for the chancery court is to be found in section 3262 of the Code of 1886, which became law by the adoption of the Code of 1886. That section reads as follows: "The chancery court shall have concurrent jurisdiction with the probate court * * * to sell for division or partition any property, real, personal or mixed, held by joint owners or tenants in common." Without this section, it is conceded that the chancery court has no jurisdiction to sell land for division or partition, where the defendant holds possession adversely under a claim of title founded upon disputed facts. It is also clear, and has been so decided, that this section did not enlarge the jurisdiction of the probate court. By the section itself, the jurisdiction of the chancery court is made concurrent with the probate court. Without this section, the chancery court had no jurisdiction to sell lands for purposes of partition or division. By virtue of this section, it has concurrent jurisdiction with the probate court to sell lands for division or partition, and in no other cases. This was

the construction placed upon this section of the Code in the case of McEvoy v. Leonard, 89 Ala. 455, 8 South. 40; reaffirmed in Keaton v. Terry, 93 Ala. 85, 9 South. 524; recognized in Johns v. Johns, 93 Ala. 239, 9 South. 419. The statute, considered in connection with the various decisions of this court prior and subsequent to its adoption, admits of no other construction. The distinction attempted to be drawn between the cases of McQueen v. Turner, 91 Ala. 273, 8 South. 863, and McEvoy v. Leonard, 89 Ala. 455, 8 South. 40, cannot be maintained. The jurisdiction of the chancery court in cases of partition, and its jurisdiction to sell for division or partition, as conferred by section 3262 of the Code, supra, was not properly stated in the case of McQueen v. Turner, supra.

The bill of complaint should not have been dismissed finally. Whether the deeds of con

veyance from Isaiah Sellers to his wife were fraudulent and void depends upon disputed questions of fact. Complainants claim through their mother, the wife of Isaiah Sellers, through these deeds. The material defendants, Friedman & Co., among other defenses, claim under a sheriff's deed to Watson. Watson was a creditor of Isaiah Sellers. His debt antedated the deed of Sellers to his wife. Friedman & Co. purchased from Watson. The defendants deny the title of complainants, and hold under an adverse claim of title. The question of titles must be determined before any court has jurisdiction to decree a sale of the lands for division or partition. We deem it improper at this time to express any opinion upon the facts of the case, or the effect of the tax-title deeds, or the proceedings in the probate court by J. H. Sellers for partition of the property. Adult parties, whose claims may be resisted upon grounds not available against minors, should not be united as plaintiffs with minors, to the prejudice of such minors. We are led to make this suggestion in view of the fact that the evidence discloses the exe cution of a mortgage, and perhaps a deed, by some of the complainants, and which possibly divested the title of the grantors, if it should be found that the title acquired by the complainants through their mother was superior to that acquired at sheriff's sale, or otherwise, by defendant. Minors may redeem, in some cases, when such rights may have been lost by the laches of adults. A decree will be here rendered modifying the decree of the chancery court so that the bill of complaint will stand dismissed, but without prejudice. Modified and affirmed.

1. While a house was being built on a lot then owned in common by defendant and H., the latter mortgaged his undivided half to defendant's husband, who borrowed money from plaintiff to complete payment for the house; giving him a note and mortgage, in which defendant joined, on the undivided half and the H. mortgage. On foreclosure of both mortgages, plaintiff bought in the property, and brought ejectment for the nole lot. Defendant set up that the lot was her separate property; that she had paid her share in the house. and signed the note and mortgage, at her hus band's request, to enable him to pay the rest. Held, that it was error to charge on the theory that the claim of separate estate extended to the whole lot, ignoring the title under the H. mortgage.

2. There was no error in a charge that if half the debt incurred for the house was H.'s, and H. then owned half the lot, and defendant paid her half, and her husband, not she, borrowed the money from plaintiff, the debt was the husband's, and defendant could not make a valid mortgage therefor. Code, § 2349. 3. Where a woman inheriting land from her father, who died in possession, continues

in possession, and on her marriage her husband comes and lives with her on the land, her possession thereafter is referable to her title, and not to his, and goes to establish her separate estate therein.

4. Defendant, who could not read or write, admitted that she had a deed from her brother to her husband, which she had failed to produce on notice. She testified that she had had it made, and paid her brother for it; that he made it to her husband, by mistake, instead of to her; that she told her brother that it was unnecessary to make it at all; and that she did not known where the deed was, but supposed it was with her husband's papers. Held, that the jury were properly charged to consider her admissions, not in proof of the execution or contents of the deed, but merely with other evidence to show that she recognized her husband's title.

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Ejectment by Josiah Hawkins against Elmira Ross. Judgment for defendant. Plaintiff appeals.

Reversed.

Upon the introduction of all the evidence, the court, in its oral charge to the jury, instructed them as follows: "There was a deed sought to be proven, purporting to be executed by Elbert Armstrong to J. H. Ross. That deed was not proven, and does not, therefore, convey any title to the land. Its execution and contents were not proven. For what purpose, then, were the admissions of Mrs. Ross, that she had such a deed in her possession, evidence against her? Simply to show the fact that she recognized the title of her husband. With regard to this ad mission, you must consider it all as evidence, -the making of the deed, the payment of the money, and the mistake in the deed. They are all circumstances going to show the character of her possession when she made them, but are not competent proof of the execution and contents of the deed, or to show that it conveyed the title." The plaintiff duly excepted to this portion of the oral charge, and also separately excepted to the court's refusal to give the 15 written charges requested by him. It is not deemed necessary to set these charges out in detail. The plain tiff also separately excepted to the court's giving, at the request of the defendant, the following written charges. (1) "If the jury believe from the evidence in this case that -J. H. Ross, when he made the mortgage to Hawkins, had no title to the land sued for, at the time he made the mortgage to Hawkins, and that the debt for which the mort gage was made to secure was the debt of Ross, and not Mrs. Ross, and that the land sued for was the separate statutory estate of Mrs. Ross, then the plaintiff cannot recover, and the jury will find for defendant." (2) "If the jury believe that the lands sued for have been occupied by defendant openly and notoriously, claiming to own the same, con ́tinuously ever since her father died, during the war, and just before the war closed, except one year, when she rented it out, and that her tenant occupied for her that year, then such occupancy would create in her a

separate statutory estate, and create such itle as she can defend this action; and, unless she made the mortgage to secure the debt of hers, then she is entitled to recover in this action, and the jury will so find." (3) "If the jury believe from the evidence that onehalf of the debt incurred in building the house was Hanes', and he owned at that time one half of the lot, and that Mrs. Ross paid her half of the house debt, and that J. H. Ross, her husband, borrowed the money from Hawkins for which the mortgage was made to secure, and that Mrs. Ross did not borrow the money, but her husband borrowed it, then the debt was her husband's debt, and under the law the wife cannot make a valid mortgage to secure the debt of her husband." Hewitt, Walker & Porter, for appellant. W. D. Bulger, for appellee.

HARALSON, J. The suit is a statutory action, in the nature of ejectment, by the appellant, Hawkins, to recover from Elmira Ross, the appellee, a certain lot of land de scribed in the complaint. The pleas upon which issue was joined and the cause tried were, "Not guilty," and a special plea of coverture, in which the defendant alleged "that the property sued for was her statutory separate estate at the time of the execution of the conveyance upon which the plaintiff re lies for a recovery; that she was, at the time of the execution of said conveyance, a married woman,-the wife of J. H. Ross,and was living with him, as his wife, in Jetferson county, Ala.; and that the only consideration for the execution of said conveyance was to secure a debt contracted by her husband." The evidence tends to show that one E. S. Hanes claimed an undivided half interest in the lot sued for, and to secure a debt of $500, which he owed to J. H. Ross, he and his wife mortgaged his half interest in said lot to said Ross. This title the defendant recognized, for she testified "that Hanes, who owned a half interest in the lot, was to pay, according to the agreement, half of the cost of the house, [built on the lot,] and she the other half, which she did pay." It appears that Ross, who succeeded to Hanes' half interest in the lot, had an equal interest with his wife, the defendant, in having the house built. As to defendant's title, the proof tends to show that she inherited the property from her father, who owned and died in possession of it about the year 1865, and that defendant has since that time been in possession, claiming it as her own, and that, while she was living on and claiming it as her property, she intermarried with J. H. Ross, who came and resided with her. His residence on the land, under such circumstances, was consistent with her continued possession, which will be referred to her title, and not to his. Motley v. Jones, (Ala.) 13 South. 782.

To show that plaintiff had acquired the defendant's title, he introduced a mortgage on