placed in his possession certain personal property, which he still held; but claimed a lien upon it for its support and preservation. He also set forth that he had received notice that said property was claimed by one Hollis Pearce to be his own proper goods. Thereupon, on the motion of plaintiff, Jennings, notice was issued and served on Hollis Pearce under the statute, and, being brought in, an issue was made up "to contest with plaintiff the right to such effects." Code 1886, § 2984 et seq. That issue had not been tried or determined, but was still pending when this motion was made and passed on. Another garnishee had been summoned, but he had neither answered, nor had judgment been rendered against him for want of an answer. Code, § 2980. It is thus shown that when the judgment was rendered against Henry Pearce,-February, 1892, and even when this motion was tried,February, 1893,-no personal service of notice of the suit had been made upon him, no appearance had been entered for him, no property of his was under attachment levy, and neither indebtedness to him nor property nor effects of his had been ascertained and fixed in the hands of a garnishee. When garnishment is the only means relied on as effecting constructive notice of the suit to a defendant in attachment, and as bringing him within the power and jurisdiction of the court, it is indispensable that indebtedness of the garnishee to such defendant in attachment be ascertained, or that there be traced to the garnishee's possession property or effects which belong to the defendant in attachment. Neither of these methods of giving notice having been carried into successful effect, the city court never acquired jurisdiction of the person or property of Henry Pearce, so as to authorize a judgment to be rendered against him. The city court did not err in setting aside and vacating the judgment against him. Lamar v. Commissioners, 21 Ala. 772; Lamar v. Gunter, 39 Ala. 324; Lewis v. Allred, 57 Ala. 628; 2 Freem. Judgm. § 495; Stubbs v. Leavitt, 30 Ala. 352; 12 Amer. & Eng. Enc. Law, 126, and notes on 128; Pettus v. McClannahan, 52 Ala. 55; 5 Amer. & Eng. Enc. Law, 146, 147, and note.

The result of this decision is to leave the case of Jennings v. Henry Pearce still open and undisposed of on the docket of the city court to await the result of the garnishments. Affirmed.

ALLEN et al. v. MCCREARY et al. (Supreme Court of Alabama. Dec. 19, 1893.) COUNTY CERTIFICATES-RIGHTS OF TRANSFEREE

PAYMENT.

1. County certificates issued for jurors' and bailiffs' services are not negotiable paper, and a purchaser thereof takes them subject to all the defenses which the county has against the vendor.

2. A purchase by a deputy county treasurer of jurors' and bailiffs certificates, when he has county funds in his hands which he does not account for on the expiration of his term, is in law a payment of the certificates by the county with such unaccounted funds, and a transferee of the deputy cannot again collect them.

Appeal from circuit court, Conecuh county; John P. Hubbard, Judge.

This was an action brought by Allen, Bethune & Co. against J. A. McCreary, the county treasurer of Conecuh county, and the sureties on his official bond, and sought to recover damages for the breach of said bond by the treasurer, McCreary, not paying, on presentation by the plaintiffs, certain bailiff's and jurors' certificates, which had been regularly issued to the jurors and bailiffs, and had been transferred to Allen, Bethune & Co. by one Herrington. There was judgment for the defendants, and plaintiffs appeal. Affirmed.

Upon the examination of one J. B. F. Watts, who was, at the time covered by the transactions involved in this suit, treasurer of Conecuh county, he was asked the following question by the plaintiff's counsel: "Did not the grand jury, at the spring term, 1886, make an examination of your books, as county treasurer, and make a report thereon to the court?" The court refused to allow this question, and the plaintiffs duly excepted. The plaintiffs then proposed to introduce in evidence, in this connection, the report of the grand jury made at the spring term, 1886, showing the amount of said deficit; but the court refused to allow this report to be introduced, and to this ruling of the court the defendants duly excepted. The defendants separately introduced as witnesses Irwin, Long, Matthews, and Ward, each of whom testified that at the spring term, 1886, their certificates as grand jurors and bailiffs, respectively, were presented by each of them to N. H. Herrington, and were paid in cash. These certificates were among the number which form the basis of the present suit. on the introduction of all the evidence the court, at the request of the defendants, gave the following written charges, and to the giving of each of said charges the plaintiffs duly excepted: (1) "If the jury believe the evidence, they should find for defendants." (2) "If the jury believe the evidence, they should find for the defendants as to the Irwin, Long, Matthews & Ward claims sued on." Farnham & Crum, for appellants.

Up

STONE, C. J. Watts was the county treasurer of Conecuh county, having all the rights pertaining to that office. He did not personally discharge the duties of the office, but, by an arrangement between him and Herrington, the latter kept the books, and received and disbursed the county's money. In fact, he (Herrington) performed all the duties of the office during the time of the transactions which gave rise to this suit. Those transac

tions occurred during the spring of the year 1886. The following are undisputed facts: In April, 1886, Herrington incurred a debt of $2,000 to Allen, Bethune & Co., due November 1, 1886, and gave them a mortgage and crop lien to secure its payment. The mortgage conveyed, among other things, Herrington's crop to be grown that year, and 10 head of mules. In the granting clause is this language: "Also, county claims on Conecuh county, between $1,000.00 and $2,000.00 worth, to be properly transferred and forwarded to Allen, Bethune & Co., to cancel mortgage on the above 10 mules and crops; provided, satisfactory security to Allen, Bethune & Co. is placed in lieu thereof in twenty days." He did transmit to them county claims on Conecuh county, being certificates issued to jurors and bailiffs for services rendered during the spring term, 1886, of the circuit court of that county; of jury certificates, $200 in amount; and of bailiff certificates, $100 in amount. These certificates were indorsed in blank by the persons to whom they were issued. Demand was made on the treasurer for the money these certificates represented, and he refused to pay them. The present suit was brought to enforce their payment, but the suit is against McCreary, the successor of Watts, and against the sureties of McCreary. The record contains this recital: "It was in evidence that at the time of presentation of claims sued on for payment, to Herrington, he had enough money of the county on hand to pay them, unless he had disposed of it, and that Watts did not dispose of any of the money, so as to cause a default." It was also an undisputed fact that Watts went out of office a defaulter, to the extent of $4,000, even if the county defends this suit successfully, and that such default was chargeable to Herrington, and in no sense to Watts, who had not handled the money. There is conflict shown in the testimony on a single inquiry of fact. Herrington testified that he had purchased from the persons to whom they were issued all the jury and bailiff certificates he had turned over to Allen, Bethune & Co., paying for them sometimes in money, and sometimes in merchandise. Several of the persons to whom the certificates had been issued were examined as witnesses, and each testified that he presented his claim to Herrington for payment, and that the latter paid him the money. This suit, although in form against McCreary and his sureties, is practically a suit against the county; for, if McCreary be required to pay the claim, it will become a credit on his account as treasurer. The certificates which constitute the cause of action in this suit are not what is known as "commercial paper." They are simply evidence of the county's indebtedness, to be paid out of the county's funds in the hands of the county treasurer. 1 Code 1886, §§ 915, 762, 848, 1756, 1757; 2 Code, § 4883. And even if they were negotiable, commercial paper, they were then due, v.14so.no.7-21

and the money they represented presently demandable, when, as is claimed, Herrington became the owner of them. For each of these reasons, they were open to the same defenses which could have been made if Herrington himself had been plaintiff in the action. 1 Code, § 1765; 3 Brick. Dig. p. 740, §§ 32, 33.

Another principle must not be lost sight of: Herrington, as we have shown, was practically the county treasurer, for he received, retained, and paid out the county's money, precisely as Watts would have done, had he been in the active discharge of the duties of the office. So that, in legal contemplation, Allen, Bethune & Co. can assert no better claim than Herrington himself could have asserted, and Herrington had no better cause of action against the county than Watts would have had, if he himself had sued, claiming that, although he had the county's money in his hands, he did not use it in paying the claims, but purchased them for himself, paying for them partly in money and partly in merchandise. This is the true state of the question, because it is clearly shown, and not disputed, that when Herrington paid, or purchased the certificates, he had the county's money with which to pay them, and that money still remains in his hands, unaccounted for. The law pronounces the transaction a payment of the county's indebtedness with the county's funds, and not a purchase by the treasurer or by Herrington, his alter ego. The circuit court did not err in the charges given, nor in the rejection of the evidence offered. The latter could shed no light on the merits of the controversy. Affirmed.

HARRISON et al. v. YERBY.

(Supreme Court of Alabama. Dec. 4, 1893.) EQUITY-BILL-AMENDMENT-DECLARATIONS-UNRECORDED MORTGAGE-NOTICE-BONA FIDE PURCHASER OF NOTE.

1. Where a bill to enjoin a foreclosure sale of land alleges that the mortgagor and mortgagee fraudulently concealed the existence of the mortgage from plaintiff when he purchased the land, an amendment alleging that the mortgage had been satisfied, and that the mortgagee held it as a cloud on plaintiff's title, does not depart from the purposes of the original bill, or make a new and incompatible case.

2. In an action to enjoin a foreclosure sale of land on the ground that the mortgagee had fraudulently concealed the existence of the mortgage from plaintiff when he purchased the land, declarations by the mortgagee when he negotiated a sale of another parcel of the land, subject to the mortgage to a third person, are not admissible.

3. Evidence, of a purchaser of land, that he does not recollect having received notice of the existence of an unrecorded mortgage, is not sufficient to establish that fact, where not only the mortgagor and mortgagee, but a third person, testify that he was notified of the mortgage before he signed the contract of sale.

4. A bona fide purchaser of a note secured by a mortgage on land is entitled to enforce it against the land, in preference to a prior unre

corded mortgage, of which he had no notice, though the maker of the note may have had knowledge of its existence.

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

Bill by J. Stephen Yerby against J. Calhoun Harrison and others to have defendant Harrison enjoined from the sale of certain lands under a mortgage, and that said mortgage held by Harrison be canceled and annulled as a cloud on the title of the complainant, Yerby; and that one J. O. Prude, holding a note which had been given for the purchase money, be enjoined from the collection of the same. Upon the final hearing of the cause on the pleadings and proof the chancellor granted the relief prayed for in the bill, and made the injunction against the defendants J. C. Harrison and Lupton perpetual, and further decreed, it appearing to the court that the "complainant had paid into court the amount due on the note held by J. O. Prude, that the injunction, as to Prude, heretofore issued, be perpetuated." From this decree the defendants appeal, and assign as error this decree of the court. Reversed.

This is the second appeal in this case. 87 Ala. 185, 6 South. 3. The original bill was filed November 10, 1888, by J. Stephen Yerby against J. C. Harrison, George F. Lupton, and James Prude. Its purpose was to enjoin an attempted mortgage sale, and to set aside the said mortgage, and to enjoin the collection of the note held by J. O. Prude until such time as the defendant Lupton should be able to make a warranty deed, free from all incumbrances, conveying the property in question to the complainant. All the facts are set out at length in the report of the case, as found in 87 Ala. 185, 6 South. 3. J. C. Harrison owned certain lands near Tuscaloosa, and on April 16, 1887, sold the same to the defendant Lupton for $4,000. On the same day, Lupton mortgaged the property to Harrison for $2,666 for the unpaid purchase money. Lupton, upon the purchase of said property, divided the same into eight lots, and placed them in the hands of J. C. Harrison & Co., real-estate agents at Tuscaloosa, for sale. This firm was posed of J. C. Harrison, J. I. Harrison, and M. G. Harrison. On April 21, 1887, J. C. Harrison, as real-estate agent of said Lupton, sold two of the lots (1 and 2) to Yerby for $1,950. Six hundred and fifty dollars of the purchase money was paid in cash, and two notes for $650 each, due, respectively, 12 and 18 months after date, were executed by the said Yerby to Lupton. Lupton, thereupon, the same day, executed his bond for title to said Yerby, in the usual form. Subsequently, on August 6th, Lupton sold another lot (3) of said property to the complainant, Yerby. This sale was completed in the office of J. C. Harrison & Co., with the assistance of J. C. Harrison. This lot was sold for $700,-$500 cash, and a note for

com

$200, due April 10, 1888. Lupton also executed his bond for title to said Yerby for this lot on the day of the purchase. The first note was discounted by Yerby on May 7, 1887, and the second note, for $650, was delivered to said J. O. Prude, by Lupton, as collateral security for the payment of a bill of exchange drawn by Lupton, and said Prude held this note at the time of the filing of the bill. The bill alleged that Yerby had no knowledge of the mortgage from Lupton to J. C. Harrison at the time of the purchase of the lands, but was kept in ignorance of the same by the fraudulent conduct of Harrison and Lupton. In default of the payment of the purchase money due from Lupton to Harrison, he (Harrison) was about to sell the property under that mortgage, and the bill was filed by said Yerby to enjoin the said sale. Harrison and Lupton answered the bill under oath, and denied the allegations of fraud, setting up that Yerby knew of the mortgage in question, that he was distinctly told of the same, and that he bought with the knowledge of its existence. These answers were full and in detail. Upon the second trial of the cause in the chancery court, Harrison filed an amended answer to the original bill, setting out various matters and facts tending to show knowledge on the part of Yerby as to the existence of the mortgage in question. On September 21, 1891, the complainant amended his original bill, alleging that said mortgage held by the defendant Harrison, and executed by Lupton, has been fully settled by the discharge of the mortgage debt, but that the defendant Harrison nevertheless holds the said mortgage as a cloud on the title of the complainant. The defendants demurred to the bill as amended; and, in his answer to the amended bill, Harrison sets out statements of the account between himself and Yerby showing a balance of $1,171 due him on said lots. On the final hearing of the cause, the chancellor rendered judgment as above stated.

Foster & Oliver and J. J. Mayfield, for appellants. Wm. Cochran Fitts and O. Somerville, for appellee.

STONE, C. J. The equity of the original bill in this case was passed upon and approved when it was formerly before us. 87 Ala. 185, 6 South. 3. We have no wish to depart from the decision then rendered, but concur in all that is therein decided. When the case returned to the chancery court, there was an amendment of the bill, to which the defendant Harrison interposed a demurrer. One ground of the demurrer was that it de parted from the purposes of the original bill. and, to a certain extent, made a new and incompatible case. We hold there was nothing in this demurrer. There were many objections and exceptions reserved to testimony introduced. We pronounce only on a few of

them, as the other rulings exert no influence upon any of the questions we propose to dis

cuss.

The witness Thompson testified, against objection, to conduct and declarations by Harrison, acted and made in negotiating a sale to him (Thompson) of another piece of property. This testimony ought to have been suppressed, because it relates to res inter alios acta. Other portions of testimony were objected to, but, as they relate to subjects we do not propose to discuss, we will not specify them. Objections to questions because they are leading are addressed to the discretion of the primary court: and, inasmuch as such objections will exert no influence in the solution of questions we intend to consider, we will not further notice them.

Had Yerby notice, before he entered into the contract of purchase of lots Nos. 1 and 2, that Harrison held a mortgage on the lots, given by Lupton to secure the payment of the purchase money therefor? The testimony of Yerby is that, to his best recollection, he had no such notice. Against this, however, was the emphatic testimony of J. C. Harrison, Maxey G. Harrison, and G. F. Lupton, that he was notified of such lien before he executed the contract by which he purchased the lots Nos. 1 and 2, on April 21, 1887. We feel forced by this testimony to hold that Yerby was personally notified of the mortgage given by Lupton to Harrison before he concluded his first purchase,-that of April 21, 1887.

When Yerby made his second purchase, August 6, 1887, he was both actually and constructively notified of the Lupton mortgage; actually, on April 21, 1887, as testified by the two Harrisons and Lupton, and constructively by the filing of the mortgage in the probate office to be registered in July, 1887. So, we hold that the charge in the bill and amended bill that knowledge of the prior mortgage on the property given by Lupton to Harrison was withheld from Yerby when he entered into his contracts of purchase is not made good. It is disproved, and in this aspect of the bill, considered by itself, complainant has failed to make out his case. We need cite no authorities to this, for it is simply a question of fact.

The assignment of error No. 20 questions that part of the decree which declares that Prude was a purchaser without notice of Yerby's third installment note, given in the first purchase made by him. The note is payable in bank, and is therefore commercial paper. Whatever interest Prude shows he has in that note, he acquired before its maturity, and there is no proof that he had any notice of any defense to the paper. In truth, J. C. Harrison, in his answer to Prude's cross bill, concedes, in substance, Prude's claim upon that note; and Prude, the only witness who testified upon the question, gives testimony which places him in the category of a purchaser, to the extent he asserts

claim to the note. The chancellor did not err in this feature of his decree.

Having ascertained that Yerby, when he made his first purchase, had actual notice of Harrison's mortgage, Yerby's bill, so far as it seeks to enjoin Harrison from selling the lots under his mortgage, must fail, for want of proof, and the injunction against Harrison must be, and is, dissolved; and so far as the bill prays relief against Harrison, and obtained the same, it is reversed, and here rendered, dismissing the bill to that extent. The decree rendered in favor of Prude, on his cross bill, must be affirmed. Let onefourth of the costs of this appeal be paid by the said J. C. Harrison, and the costs in the court below, and the remaining costs in this court, be paid by appellee, J. Stephen Yerby. Reversed and rendered.

1. An insurance company cannot avoid its obligation to pay a loss on the ground that the interest of the insured is not truly stated in the policy, as required therein, where the insured truly answered the questions in the application, and the insurance agent knowingly and intentionally wrote them down differently.

2 A simple contract creditor of a deceased debtor, whose estate is insufficient to pay debts, has an insurable interest in the property of the estate, since he has a right, by proceedings in rem, to subject it to the payment of his debt.

3. In an action on an insurance policy, a pleading which alleges that the land belongs to the estate of a deceased person, that it is subject to his widow's homestead and dower rights, and that the insured is a creditor of the deceased, shows an insurable interest in her, since the dower and homestead rights of the widow are merely a life estate, leaving a remainder in fee liable for the debts of the deceased.

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by Katie Creed and Mattie Flinn against the Sun Fire Office of London to recover $2,000, the amount claimed on a policy of insurance on a building situated near the city of Montgomery, which was insured by the defendant against loss or injury by fire, and which was, before the bringing of said suit, entirely destroyed by fire. There was judgment for defendant, and plaintiffs appeal. Reversed.

The defendant pleaded several pleas. By the first plea it pleaded the general issue. In the third plea it averred that by the terms of said policy it was provided that the entire policy was to be void if the in sured concealed or misrepresented any material fact concerning the insurance, or the subject thereof; and further averred that the insured had concealed a material fact concerning the subject of the insurance, in that the plaintiffs applied for and took out

said insurance upon the house described in the complaint as their property, whereas in truth it was, at the time of the taking out of said policy, and at the time of said fire, the property of the estate of one T. W. Creed, who died intestate before the taking out of said insurance policy; and that the said T. W. Creed left surviving him brothers and sisters, heirs at law, and that neither of the plaintiffs was a sister of the deceased; and that the plaintiffs concealed from the defendant the fact that said house was the property of the said T. W. Creed, deceased. In the sixth plea the defendant set up as a defense that the fire by which the building was destroyed was caused by the fault of the plaintiffs. The second, fourth, and fifth pleas are in the following language: "Second. It avers and states that in and by the terms of the policy sued on in this case it is expressly provided, among other things, that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void if the interest of the insured be other than the unconditional and sole ownership of the property insured; and defendant avers that the said insured took out the said policy upon the said house described in said complaint as their property, and that at the time the said insurance occurred, and at the time the said building was destroyed by fire, the said house was not the property of the said plaintiffs; and defendant further avers that the said policy contains no agreement indorsed thereon or added thereto that the plaintiffs might insure the said property although they were not the sole and unconditional owners of the said property. Fourth. And, further answering said complaint, defendant says that in and by the terms of the policy sued on in said complaint it is expressly provided that the entire policy shall be void if the interest of the insured in the property be not truly stated therein, and defendant avers that the interest of the said insured is not truly stated in the said policy; that the said property is insured as the property of the said plaintiffs, whereas in truth and in fact the said property was not the property of the said plaintiffs; that the said Mattie Flinn had no interest in the said property; that the said house insured formerly belonged to one T. W. Creed, who had died intestate, leaving certain brothers and sisters as his heirs at law; that the only interest that the said plaintiff Katie Creed had in and to the said property was the interest which she as the widow of the said T. W. Creed might acquire therein, and the said Mattie Flinn had no interest therein; wherefore this defendant avers that the interest of the said plaintiffs, the insured, was not truly stated in the said policy, and that the same is void. Fifth. And, further answering said complaint, this defendant avers that in and by the terms of said policy it is expressly provided that, unless it is provided

by agreement indorsed thereon or added thereto, the said policy shall be void if the subject of the insurance be a building on ground not owned by the insured in fee simple; and defendant avers that the subject of insurance in this instance was a building on a certain lot of land near the city of Montgomery, Alabama; that the said lot of land was not at the time of taking out said policy, or at the time of said loss, nor at any time after the taking out of the said policy, owned by said plaintiffs in fee simple, but that, on the contrary, the said ground was owned by the heirs at law of one T. W. Creed, then lately deceased; and that plaintiffs were not the heirs at law of said T. W. Creed. And defendant further avers that no agreement was indorsed on the said policy, or added thereto, providing that the subject of insurance might be on ground not owned by the insured in fee simple; and that the defendant had no notice at the time of the issuance of said policy, nor at any time prior to the burning of said building, that the plaintiffs did not own the ground upon which the said building was situate." The plaintiffs joined issue on the first, third, and sixth pleas, and to the second, fourth, and fifth pleas they filed the following replication: "That at the time of taking out the policy of insurance sued on in this cause, Katie Creed, one of the plaintiffs, was the widow of T. W. Creed, then lately deceased, who died seised in fee of the property insured, and that she is still such widow; that as such widow she had and has an interest by way of dower and homestead in the property covered by said insurance; that she had such interest at the time of the application for and the issuance of said policy by defendant; that at the time of the application for and the issuance of said policy, Mattie Flinn, the other plaintiff in this cause, was a large creditor of the estate of T. W. Creed in the amount of, to wit, about two thousand dollars, and that she was such creditor at the time of the burning of said house insured and described in the complaint in this cause, and such claim of said Mattie Flinn has been ever since the taking out of the policy of insurance sued on, and is now, a valid and subsisting demand against the estate of T. W. Creed, deceased; that there is not and was not at the time of the application for and the issuance of the policy sued on in this cause, enough personal property be longing to the estate of said T. W. Creed to pay the debts due and outstanding against said estate. And plaintiffs aver that they applied to one J. B. Trimble, who was at the time of said application the regularly constituted agent of defendant corporation, for said policy on said building; that said J. B. Trimble well knew at the time plaintiffs applied for said policy, and at the time of the issuance and delivery to them by him as such agent of defendant corporation,