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to convey the lot to respondent and take the mortgages in payment therefor. These averments need not be here stated or discussed in detail. They set forth facts, the particular concealments and misrepresentations relied on, and that complainants were influenced to convey the land by them. They are clearly not the mere conclusions of the pleader. The concealments charged were material, and, if fraudulent, as is directly charged, and as is inferable from the facts directly charged, and inducive to the transaction, they are vitiating. The misrepresentations alleged were as to matters of material fact, and not the mere expression of opinion on the part of the defendant. The averments are entirely adequate, if proved, to entitle the complainants to the decree they ask, so far as that relief depends upon the fraud of Baker. The demurrers which proceed on the contrary assumption were therefore properly overruled. Henry v. Allen, 93 Ala. 197, 9 South. 579, and cases cited.

No

2. But other demurrers are in the nature of confessions and avoidance. Conceding the fraud charged, and that it conduced to the result complained of, one position advanced by the demurrers is that no relief can be had on this bill because the contract became and was a wholly executed one, in that complainants had made an absolute conveyance of the land to the defendant, and the latter had fully paid the agreed consideration by transferring and delivering the mortgages to the vendors, reciting in the indorsement of transfer that it was without any recourse whatever on him. The fullest concession of the executed character of the contract will not help the appellant. contract can ever stand against an assault seasonably made on the ground that the fraud of one of the parties induced the other to enter into it, merely because everything contemplated by it has been fully done. No transaction can be closed against the vitiating consequence of actual fraud leading to its consummation, if the aggrieved party is dili gent in his attack upon it. It was long ago decided by this court, in line with the universally prevailing doctrine, that "a misrepresentation by a vendor of land in regard to a material fact, which operated as an inducement to the purchase, upon which the vendee had a right to rely, and by which he was actually deceived and injured, is a fraud, and confers upon him the right to avoid the contract, whether executory or executed." Foster v. Gressett, 29 Ala. 393. And there are many cases in our Reports where this doctrine has since been acted on without question.

3. The contract having been entered into and the lot conveyed by complainants upon the consideration of a transfer of the mortgages to them, it is immaterial whether the bill negatives the solvency of the mortgagors or not, or whether it avers that the debts purporting to be secured by the instruments

were not enforceable aside therefrom. The complainants were entitled to receive precisely what they contracted for,-mortgages on the property described in these papers; and if, as alleged in the bill, the mortgages they did receive, though nominally embracing the property, were of no value as to the land, because the mortgagor had no title thereto, and of insignificant value as to the personalty, because a part thereof was no longer in existence, and other parts had been inserted therein by the mortgagee, without authority, after execution, and by the false representations and concealments charged in the bill against defendant they were led to believe that the title to the realty was good, and that all the personalty was existent and efficaciously covered by the mortgages, and were induced by these fraudulent misrepresentations and concealments to exchange and convey their land for the mortgages, they were entitled to the rescission they seek, whether or not the debts mentioned in the instruments could be collected apart from them. Of course, if these debts have been collected by the complainants, that would be matter for answer, and would be a complete defense to the bill. But complainants having stipulated for the transfer of a debt secured in a particular way, and enforceable by a summary and inexpensive sale under a power, this security being the inducement to the contract, it is no answer to their present claim for the defendant to say that: "Although, by my false representations and concealments, I have fraudulently induced you to part with your property on a worthless security, when the expressed stipulation was for a security of a particular, valuable kind, yet if you can in the end collect the debt by resorting to other-more expensive and less expenditious-remedies than that for which you specially contracted, you must do so, and my fraud is innocuous." Aside from these considerations, we may remark that, if this were a good defense at all, it would have to be made by answer, since the bill does not disclose that the debt has been or could be made by other process than the foreclosure of the mortgages, and the presumption would be, in the absence of anything to the contrary, that the debts are not collectible apart from the mortgages. And, moreover, it may be further stated here that the bill does aver the insolvency of the makers of two of the three mortgages complainants contracted for; and even were the position of defendant, in this connection, a sound one, the complainants would still, so far as this question is concerned, be entitled to the relief prayed, notwithstanding the sum recovered by the other mortgage-about onethird of the whole-might be realized by suit on the note.

4. The further contention of the appellant that the representations made were not such as complainants had a right to rely upon,

but that, to the contrary, it was open to them to ascertain their falsity, and that they were lacking in that diligence which the law required of them in the premises, in failing to make the necessary investigation, is without merit. This is manifestly true in regard to the alleged representations as to the personalty, since it does not appear by the bill that complainants had any means of knowing or ascertaining whether they were false or not; and, moreover, these representations were such that complainants had a right to rely upon them, unless they knew-not merely had an opportunity of informing themselves-that they were untrue. Henry y. Allen, 93 Ala. 197, 9 South. 579. With respect to the alleged false representations as to the title to the land embraced in the mortgage, the same doctrine obtains. The representations alleged, being material and conducing to the transaction, are vitiating, notwithstanding the complainants might, by the exercise of diligence, have ascertained their falsity. They were representations of fact, and not mere expressions of opinion. The defendant assured the complainants, as a fact, that the mortgagor, at the time of executing the instrument, had title to the land, and he even went so far as to give them the means and sources of his information-not opinion-to that effect, stating that he (the defendant) had examined the records of land titles, and therefrom ascertained the fact to be as he represented it. On this state of case, complainants were under no duty to inquire further. They had the right to rely and act on defendant's statements as true, notwithstanding the opportunity was afforded them, by an examination of public records, to ascertain to the contrary. Woodbury v. State, 69 Ala. 242; Griel v. Lomax, 94 Ala. 641, 10 South. 232.

5. It appears from the indorsements on each of the mortgages, all of which are made exhibits to the bill, that soon after they were transferred by Baker to the complainants the latter, for value, transferred and assigned them to the J. Snow Hardware Company, without recourse, and that several months afterwards said company transferred and assigned them, for value and without recourse, back to the complainants. It is insisted, through the demurrers, that these facts are fatal to the relief now sought for; that by the sale for value and transfer of the mortgages to the hardware company the complainants realized all they were entitled to receive out of the mortgages, and hence have not been injured by the original transaction between them and the defendant; and that if the securities are in fact valueless, and complainants are damaged in consequence, their loss is not referable to any fraud of the defendant, but to their own improvidence in repurchasing the mortgages from their own assignees,-a transaction to which the defendant was a stranger, and with which he had nothing to do. If the

assignment and transfer by complainants to the hardware company were for value and without recourse, and nothing was then said or done by the assignors which, notwithstanding the stipulation against recourse, would entitle the assignees to a rescission of the contract, or render complainants liable to an action of damages,-as would be the case, for instance, if the complainants, relying upon, repeated, on their own responsibility, the assurances which the defendant gave them in the original transaction, and thereby induced the hardware company to buy the mortgages,-if, in short, there was no enforceable legal or equitable obliga. tions resting on the complainants to accept a retransfer of the mortgage from the hardware company, and they did repurchase and accept a retransfer thereof, they are damnified, not by the original fraud of Baker, (against that, they, on the case supposed, fully recouped themselves by the sale for value to the hardware company,) but by their own voluntary act in repurchasing from, and paying value to, their own transferee. This is the case presented by the bill, in its present shape, and upon it the complainants are not entitled to the relief prayed. To give the bill equity in this respect, there should be averment of facts which impose an enforceable duty on the complainants to repurchase the mortgages, or a liability on them in damages in respect of the transfer to the company notwithstanding the stipulation against recourse. The demurrer which went to this point should have been sustained.

6. The assignment of the mortgages to the hardware company was such dealing with them-such an affirmance of right to them-on the part of the complainants as would amount to a reaffirmance and ratification of the contract between them and the defendant,-the conveyance of the lot to the defendant, and his transfer of the mortgages to them,-and would preclude all relief they might otherwise have been entitled to on account of the alleged fraud of the defendant, if, at the time this transfer was made by them, they knew the falsity of the representations and the fact of the fraudulent concealments which are alleged in the bill, but not otherwise. This knowledge on their part at that time is not alleged in, and is not inferable from the averments of, the bill. Moreover, it does not appear from the bill that complainants had knowledge of the fraud alleged to have been practiced upon them at any time before bill filed. Hence, the positions of the demurrant that the fraud alleged had been condoned, and the transaction infected by it ratified, and that complainants have been guilty of laches in the institution of this suit, are all and alike untenable. For the error pointed out above, the decree of the chancery court is reversed. The cause is remanded. Reversed and remanded.

CARLETON v. STATE. (Supreme Court of Alabama. Dec. 21, 1893.) CRIMINAL LAW-REVIEW ON APPEAL-EVIDENCE

1. The action of the trial court on a demurrer to an indictment will ordinarily not be reviewed where the only evidence of its existence and the action of the court thereon is the recital in the bill of exceptions.

2. Under an indictment containing a count for assault with intent to rob and also one for assault with intent to murder, evidence in support of both counts is admissible.

Appeal from criminal court, Jefferson county; Samuel E. Green, Judge.

Will Carleton was convicted of assault with intent to rob, and appeals. Affirmed.

The bill of exceptions shows that the defendant demurred to the indictment on the ground that there was duplicity, in that the indictment charged two separate and distinct offenses. The bill of exceptions recites that this demurrer was overruled, and the defendant excepted. This is the only reference to the ruling of the court upon the demurrer contained in the record. On the trial of the cause, as is shown by the bill of exceptions, the state introduced evidence tending to show that the defendant was guilty of an assault with intent to rob. After this evidence, and when the state introduced another witness, the defendant moved the court to restrict the state to the examination of said witness, as to the assault with intent to rob, which was testified to by the former witness. The court overruled this motion, and the defendant duly excepted. This presents the only other exception to the ruling of the court, as shown by the bill of exceptions.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN, J. The defendant was convicted of an assault with intent to rob. There were two counts in the indictment. The first charged that the assault was made with the intent to rob, and the second that it was made with the intent to murder. The action of the primary court upon a demurrer to an indictment ordinarily will not be revised by this court when the only evidence of its existence and the action of the court thereon is the recital in the bill of exceptions. 3 Brick. Dig. p. 78, §§ 6, 7. Such is the condition of the record before us. We would have no hesitation in declaring, however, if the question had been properly raised, that the ruling of the court, as recited in the bill of exceptions, was free from error. Section 4383 of the Criminal Code provides that "when an offense may be committed with different intents, such intents may be alleged in the same count in the alternative;" and by section 4385 it is declared: "When offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative." What may be charged in one count of an indictment in the alternative, may certainly be

charged in two separate counts of the same indictment. 1 Brick. Dig. p. 500, pars. 750753, inclusive; Johnson v. State, 29 Ala. 62; Beason v. State, 72 Ala. 193.

There was no error in receiving the evidence in support of the second count, after evidence had been introduced in support of the first count. The very purpose for framing the indictment with two or more counts was to prevent the application of the doctrine of election. When there is but one count charging a single offense, the law pre sumes the defendant comes to trial prepared to meet the single charge, and the prosecution will not be permitted, after once having elected, to introduce evidence of another and different offense; but where the indictment charges that the offense was committed by different means, or with different intents, in the alternative, or where the offenses are of that character which may be joined in the same indictment, in different counts, the defendant is fully informed of the cause of the prosecution, and the doctrine of election does not apply until after there has been an election by the prosecution under each alternative charge or separate count. Beason's Case, supra; Elam v. State, 26 Ala. 48. There is no error in the record, and the judgment must be affirmed. Affirmed.

KENT et al. v. MARKS et al.1 (Supreme Court of Alabama. May 19, 1893.) MORTGAGES-CANCELLATION-MISTAKE-EVI

DENCE.

Defendants owed complainants on a mortgage and on an open account, and, a payment having been made by defendants, the mortgage was surrendered, as complainants alleged, through a mistaken impression of one of their employes that the mortgage debt had been paid. Defendants testified that they called for a statement of their "mortgage account," and complainants' bookkeeper testified that they called only for a statement of their open account, which he furnished. There was no such account on complainants' books as a "mortgage account," and the amount paid by defendants was the exact amount of the open account. Defendants knew that the money paid by them was less than the mortgage debt. Complainants produced in evidence the statement of the open account which they claimed to have furnished, while defendants failed to produce the statement of the "mortgage account" which they alleged was furnished them. Held, that the payment was on the open account, and that the mortgage was surrendered by mistake.

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Bill by Marks & Gayle against Kent & Barnett to have the surrender and cancellation of a mortgage made by the defendants to the plaintiffs set aside, and for a foreclosure thereof. Decree for plaintiffs, and defendants appeal. Affirmed.

John G. Winter, for appellants. T. Scott Sayre, for appellees.

'Rehearing denied February 13, 1894.

HARALSON, J. The primary object of the bill in this case is the foreclosure of a mortgage given on real estate by appellants, who were defendants in the lower court, to appellees, the complainants there, to secure a note of the defendants to the complainants for $508.88. This note and mortgage were due and unpaid on the 2d February, 1891. The defendants were also indebted to complainants, on that date, for a balance on open accounts, in the sum of $432.43. On that day defendants paid to complainants the sum of $432.43, the amount due and owing by them on their open account; and one of the employes of complainants, under the mistaken impression, as is averred, that it was the mortgage debt that had been satisfied, delivered to defendants the mortgage, but did not deliver to them the note secured by it, which note, it is alleged, was lost or mislaid. The appellants claim that they paid their mortgage, and not the balance on their open account, and there is therefore no mortgage debt due, and no mortgage to foreclose; whereas the complainants in the suit allege it was the balance of the account that was paid, and the mortgage is still alive, unaffected by its delivery through mistake to the defendants. There is no dispute as to the amount that was paid on the 2d of February, 1891, but the sole contention between the litigants is one of the application of the payment,whether to the mortgage or open account debt. The prayer of the bill is to have the surrender and cancellation of said mortgage set aside, and for a foreclosure of the same. The chancellor granted the relief prayed, and this appeal is to reverse that decree.

The case is not one, nor is it similar to one, for the reformation of a written instrument for an alleged mistake in its execution; and the authorities referred to, and the argument submitted by counsel in reference to such a case, as analogous to this, are without application. The question here, as stated, is one purely of fact, as to the application of the payment of the money made by defendants to complainants. If the money was paid on the open account, and to close it up, and the mortgage was delivered up by mistake, when nothing had been paid on it, then its delivery to defendants did not affect it at all, and it remained in their hands, though marked "Canceled" by complainants, just as valid, and of as much force and effect, as if it had remained in complainants' hands. Defendants, in such case, would be held to be the depositaries of it in trust for complainants. Let us inquire, then, about this payment. It must be admitted that at the time of payment the defendants had the right to direct its application; but, if they failed to give any directions as to how it should be applied, the complainants had the right to apply it to either one of their debts, and if they did apply it at the time to their open account debt both parties are bound by it. The burden of proving an alleged specific direction as to an

application of a payment is upon the debtor. Levystein v. Whitman, 59 Ala. 345. McD. Cain testified that he was in charge of the books of complainants, temporarily, from the 26th January to the 4th of February, 1891, in the absence of Mr. Boyd, the regular bookkeeper; that defendants came in on the 2d of February, and asked for a statement of the account of Kent & Barnett, and each asked also for a statement of his personal account; that he accordingly furnished to them a statement of the open account of Kent & Barnett with complainants, and the account of T. R. Kent with them, and, there being only two items on the account of R. A. Barnett,-one an item of debit, and the other of credit,-he furnished no written statement to him, but told him the balance that was to his credit. The witness attaches to his deposition a copy of the account he rendered to defendants, which is headed: "Messrs. Kent & Barnett. In account with Messrs. Marks & Gayle." That account aggregated on the debit side $3,645.46, composed altogether of cash items advanced at different times to them; and ou the credit side $3,213.03, the proceeds of 70 bales of cotton, except $100, a cash payment on the 22d January, 1891; leaving a balance of $432.43 due by them to complainants on the 2d February on open account; and no reference to any mortgage indebtedness is found in the statement. He further testifies that defendants settled with him by that statement of account, and paid that balance by drawing, each, a check on complainants for the amount he had with them to his individual credit, and by paying him the balance, thereafter, of $88.84, in cash; that the checks drawn respectively by Kent and Barnett were credited to their individual accounts, balancing them; and the amounts they paid in their checks and the cash payment, exactly aggregating the $432.43, was credited to defendants in their said open account with complainants, to balance and settle the same in full; that they had the statement furnished to them at the time they paid the balance of the account as shown, and there was no account of theirs, of the mortgage transaction, on the books of complainants. W. M. Marks testified that on the 2d February he was cashier and general utility man of complainants, and remembered the transaction with defendants on that day; that nothing was said to him about their indebtedness to complainants, except that he was told they had settled it, and wanted their mortgage; and he did not remember whether this was told him by one of them or by some one in the office; that he did not investigate to see whether they had settled or not, but, believing they had paid the mortgage and account, he surrendered the mortgage to them; that, as a matter of fact, defendants had not paid said note and mortgage, and a few days afterwards Mr. Boyd, the bookkeeper, called his attention to that fact; that he afterwards saw defendants, and they acknowledged that

their mortgage debt was not paid, and stated they were unable to pay the same then, but would make a new mortgage, any way complainants desired it; that complainants drew up another mortgage, giving them additional time for the payment of the amount claimed; and on May 2d complainants received a letter from defendants, in the handwriting of T. R. Kent, in which they said they had not signed the mortgage, and requesting them to fill out one for $481.58, with instructions, and send to them, and they would sign; concluding with an apology for not attending to the matter sooner. Another witness, W. A. Gayle, corroborates the witness Marks as to these conversations with defendants, testified to by him, and of their having promised to make a new mortgage for the old one, which they acknowledged had not been paid, and states that the defendants came to Montgomery for the purpose of giving such a mortgage, but complainants desired their wives to join with them in its execution, and on that account it was not done, but they departed with the agreement, if complainants would send a notary public to their houses with the mortgage, they and their wives would execute it, and they requested this to save their wives a trip to Montgomery. The defendants each testified, in substance, that they went together, on the 2d February, to the office of complainants, and called for the balance on their mortgage account, and paid it, and the mortgage was delivered to them; that there was no statement of the account of Kent & Barnett with complainants rendered to them at the time, but the balance due on the mortgage account was handed to them. They deny the conversations deposed to by witnesses Gayle and Marks for complainants, as to their acknowledging that they had not paid the old mortgage, and agreeing to give another; but they say that they did promise to give a mortgage, if they found they owed anything, and the promise to do so was some time after their first conversation with Gayle. Kent states that he wrote the letter referred to to the complainants, but he gives no explanation of it; and Barnett states that he knows nothing about it; and both say the money was paid to be applied to "the mortgage account," as they repeatedly style the account for which they called, and which they say they paid.

It will be thus seen that the evidence for the parties is in material conflict, reconcilable alone, as we prefer to consider it, on the score of the infirmity of human memory when stimulated by self-interest, and a desire, which is very natural,-if it is not always commendable,-to succeed in the struggles of a lawsuit. Here, as is generally the case, some footprints have been left, which lead to a satisfactory solution of the vexing question between the parties, as to which their statements are at such variance. Cain testified that defendants, when they called, asked for a "statement of the account of Kent &

Barnett," and defendants say they asked for the statement of their "mortgage account." Cain testified further that he furnished them a statement of their account and not a statement of what was due on the mortgage, showing that they owed the complainants a balance of $432.43, on open account; that they also called for their individual accounts, and he furnished them, showing that Kent had to his credit $314.19, and Barnett to his $29.40, which balances they drew checks against, to pay on the account rendered, which two sums, with $88.84, which they paid in cash, exactly equaled the balance of $432.43, and satisfied that open account. The defendants say they paid the mortgage account, and not the open account. Now, it appears there was no such account on the books of complainants as "the mortgage account," and it was unnecessary to have been there, as the mortgage and note, on which nothing is shown to have been paid, were a stated account always of what was due, except the interest; and, if any payments had been made on the note, they should, properly, have appeared indorsed thereon. Again, defendants paid the exact amount of the balance due on the open account, and not the amount due on the note and mortgage. They knew they had an open, unsecured, current open account with complainants, and they knew that the amount of their mortgage indebtedness was $508.88, with interest from January 1, 1891, an amount larger than the sum they were paying. It was a fact, we must hold, they knew with absolute certainty that $432.43-the amount they paid-was not equal to their mortgage debt, and therefore could not pay it. It is true, Kent testifies that he paid $100 on the mortgage in January, but that credit was applied to the open account, which was rendered to the defendants by Cain, and not disputed, leaving a balance of $432.43, which they settled in the manner shown. If credited to the mortgage, and added to the indebtedness on the other account, the mortgage would have been $408.88, and the balance on open account $532.43, both making $941.31, the same amount they owed on the day they paid the balance on open account; and yet they denied, after paying that sum, that they owed anything more to complainants, either on open account or mortgage. Their memories are at fault. Besides, defendants say they called for their individual accounts in addition to the mortgage account, and all three were furnished, Barnett being told simply what was due on his,-$29.40. Kent attaches to his deposition his individual account, which Cain says he furnished him, showing a balance due him of $314.19; but he does not attach the "mortgage account," which he and Barnett both testify Cain furnished. Certainly, then, an account of Kent & Barnett was furnished by Cain. Both sides agree as to that, and they both agree in the further fact that $432.43 was the balance of the account rendered, and the sum that was paid

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