though it probably would have been compe tent had it identified the time as being just before or just after that to which the state's evidence related, or had it tended to show defendant's habit, covering the time, to carry a pistol openly on his person, the evidence for the state not being such as to wholly exIclude the idea that the weapon was so carried at the time referred to by its witness. The court also properly excluded the proposed testimony of the defendant that "the pistol could have been seen by ordinary observation." This was the mere opinion or conclusion of the witness from facts capable of being put before the jury, and from which it was their right and duty, unaided by the mental processes of the witness, to draw whatever conclusion was justified in the premises. "A reasonable possibility" is, and, in the nature of things, can be, no more or less than a possibility; and a possibility of innocence does not require, and will not justify, acquittal. The charge requested by the defendant was well refused. Sims v. State, 13 South. 498.

There was a verdict of guilty, the assessment of a fine by the jury, and a recital of confession of judgment for fine and costs by defendant and sureties in this case, but there was no judgment of guilty. There was, in other words, no judgment from which an appeal would lie in the court below. Ayers v. State, 71 Ala. 11. This appeal must therefore be dismissed. Appeal dismissed.

MORGAN v. HENDREN.

(Supreme Court of Alabama.

Jan. 10, 1894.) PROBATE COURT-ASSIGNMENT OF DOWER-JURIS

DICTION.

Where lands conveyed by claimant's husband have been improved to the amount of about one-fourth the value of the land, an assignment of dower by metes and bounds by the probate court, under Code, § 1910, would be unjust, and claimant's remedy is in equity.

Appeal from probate court, Jackson county; William B. Bridges, Judge.

Petition by Rebecca Hendren for the assignment of dower in certain lands, to which B. F. Morgan holds the legal title. From a decree for petitioner, Morgan appeals. Reversed.

J. E. Brown and R. W. Walker, for appellant. W. H. Norwood, for appellee.

MCCLELLAN, J. On the evidence set out in this record we are satisfied that petitioner's husband was seised of the land in controversy at the time of and for many years after his marriage to her. Our conclusion further is that, being so seised, he conveyed the land to Addison White, as security for money the latter had loaned to or paid for him. Whether, if this money was a loan, it was advanced by White to enable Hendren

to pay for the land, and used for that purpose, or loaned to him generally and without reference to any particular object, we regard as an immaterial inquiry, In any view as to that, the money became Hendren's, and in its stead White held Hendren's obligation to repay a like sum, secured by a mortgage on this property. Conceding, in other words, that the money was loaned and used to pay for the land, it was, after being loaned, so used, not as White's money, but as Hendren's; and White's rights in respect of the land were referable to the mortgage, and not to the operation of law by which a trust is raised up in favor of him whose funds have been used in the acquisition of title to realty by another. He was a mortgagee, and not a cestui que trust; and neither his mortgage, nor any devolution of title through it, could present any obstacle to the allotment of dower by metes and bounds to Hendren's widow, the present petitioner, since that instrument was executed after seizure and marriage, and was not joined in by her. It is not pretended that the petitioner had ever relinquished her claim to dower, and it follows that she is now dowable of the premises involved here. But it does not follow that the probate court had jurisdiction to make the allotment. On the contrary, the evidence adduced shows to our satisfaction that "because of the improvements made by the alienee an assignment of dower by metes and bounds would be unjust," and in such case the chancery court alone has power to make the allotment; the probate court being without authority to take the improvements into consideration, and hence incapable of doing justice between the parties by a decree having reference to them, or making any allowance to the alienee because of the betterments he has put on the land. Code, § 1910. It was developed in this case that Morgan, the alienee, had made improvements of the value of from $100 to $150,-quite a large sum in relation to the value of the land itself, which was about $500. Manifestly, in allotting one-third of the land by metes and bounds to Mrs. Hendren, she would receive one third of the value of Morgan's improvements, to which she has no shadow of right. When this state of case developed on the trial, the probate court should have dismissed the petition for dower. Its decree assigning dower must be reversed and the cause remanded. Reversed and remanded.

Ex parte RAND.1

(Supreme Court of Alabama. Feb. 6, 1894.) SENTENCE-UNDUE DELAY IN EXECUTION-HABEAS CORPUS.

A person sentenced to hard labor and detained in jail by the sheriff for 14 days is entitled to a writ of habeas corpus.

'Rehearing denied February 13, 1891

Jim Rand petitioned the probate judge of Lauderdale county for a writ of habeas corpus. Denied. Petitioner excepts. Writ granted.

John T. Ashcraft, for petitioner. Wm. L. Martin, Atty. Gen., for respondent.

COLEMAN, J. On the 8th of December, 1892, Jim Rand was tried and convicted upon a charge of assault and battery, and sentenced to perform hard labor for the county. Being detained in jail by the sheriff, on the 30th of December, 1892, he sued out a writ of habeas corpus, alleging, among other things, that he was wrongfully and illegally detained in the county jail by the sheriff. The facts are undisputed, and there are no circumstances or reasons given why the petitioner has been thus detained in jail for so long a time after his conviction and sentence. Under the following authorities it was the duty of the probate judge to grant the writ, and, upon hearing, to have discharged the prisoner: Ex parte Crews, 78 Ala. 457; Kirby v. State, 62 Ala. 51; Ex parte King, 82 Ala. 59, 2 South. 763. There are other irregularities in the proceedings, but it is unnecessary to notice them. The writ of habeas corpus will be awarded, unless the petitioner is content to renew his application before a court or judge of primary jurisdiction.

existence of such claim. The grand jury of said county further charge that, before the finding of this indictment, Levi Upshur, being the bailee of Alf Downing, did embezzle, or fraudulently convert to his own use, one horse, the personal property of said Alf Downing, which said horse had come into the possession of the said Upshur by virtue of a bailment for the benefit of the said bailee, the said Upshur, and which said horse was of the value of fifty dollars, against the peace," etc. On the trial of the cause, the jury returned the following verdict: "We, the jury, find the defendant guilty." The defendant then moved the court for an arrest of judgment on the following grounds: "(1) That the indictment is, upon its face, defective; (2) that the verdict of the jury is defective, in that a general verdict of guilty was returned upon an indictment which charges two separate and distinct offenses, and against separate and distinct persons; (3) that the state failed to elect upon which count in the indictment it would try the defendant, all of which defendant alleges as error." This motion was overruled, and the defendant excepted.

John A. Elmore, for appellant. Wm. L. Martin, Atty. Gen., for the State.

INDICTMENT-CHARGING SEVERAL OFFENSESELECTION BY STATE.

Where, out of precaution to meet every aspect of a single offense, an indictment charges distinct crimes, and no attempt is made to convict accused of disconnected offenses, the state will not be compelled to elect. Butler v. State, 9 South. 191, 91 Ala. 87, and Tanner v. State, 9 South. 613, 92 Ala. 1, followed.

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

Levi Upshur was indicted in one count for unlawfully disposing of a horse upon which there was a lien, and, in another count, for embezzling the same horse. There was a general verdict of guilty, and he appeals. Affirmed.

The appellant was indicted and tried under the following indictment: "The grand jury of said county charge that, before the finding of this indictment, Levi Upshur, with the purpose to hinder, delay, or defraud Winter & Loeb, a partnership composed of Winter, whose Christian name is to the grand jury unknown, and Jacques Loeb, who had a lawful and valid claim thereto under a written instrument, lien created by law, for rent or advances, or other lawful and valid claim verbal or written, did sell or remove personal property, consisting of a horse, of the value of fifty dollars, the said Levi Upshur having at the time a knowledge of the

ASHURST v. PECK et al.

(Supreme Court of Alabama. Jan. 11, 1894.) MAINTENANCE WHAT CONSTITUTES DEED OF LAND ADVERSELY HELD SPECIFIC PERFORMANCE-DEMURRER TO BILL-RENTS AND PROFITS. 1. Where the vendor of land retains the title as security for the purchase money, the possession of the land and pernancy of rents and profits by him are presumptively subservient to the equitable ownership of the vendee, and hence do not render conveyances by the vendee to third persons void for maintenance.

2. A bill for the specific performance of a contract by which defendant's intestate agreed to convey land on payment of a certain price recited that complainant did not know whether certain notes which the contract stated were given for the agreed price to the intestate by complainant's deceased assignor were actually executed or not, and there was no averment as to when the price was to be paid, nor did this appear from the contract. Held, that complainant was entitled to relief, though unable to aver the time for the payment of the price, or that no such time was fixed, and that he could assume that the vendee was to perform in a reasonable time.

3. A demurrer to the bill did not raise the objection that the bill did not sufficiently show that complainant had done what he could to learn whether the notes recited in the contract as given for the purchase money were actually executed, in the absence of an averment in the demurrer pointing out such defect.

4. An allegation in the demurrer that "the alleged right of complainant is stale" implies that defendant has slept on his rights for a

long time, and does not cover a defense based on complainant's acquiescence in special conditions and circumstances rendering it inequitable to enforce the demand.

5. To obtain specific performance of a contract for the sale of land, complainant vendee need not offer to perform, or tender a deed before filing the bill.

6. A vendor of lands who has retained the title and possession, but has bound himself to convey on payment of the price, is accountable for rents and profits to the vendee to the same extent as a mortgagee in possession.

Appeal from chancery court, Montgomery county; John A. Foster, Chancellor.

Bill by James V. Ashurst against W. D. Peck, auministrator, etc., and others, for the specific performance of a contract of purchase. From a decree sustaining defendants' demurrer to the bill, plaintiff appeals. Reversed.

The defendants demurred to the bill on the following grounds: (1) That the bill and exhibits thereto show that the relation of mortgagor and mortgagee did not exist between Charles F. Ashurst and A. B. Peck, but that the relation was that of vendor and vendee. (2) On the facts stated in the opinion the complainant has no right to redeem. (3) The contract discloses an unconditional executory contract of sale, and the said transaction cannot be held a mortgage, at the instance of the complainant. (4) The bill is insufficient, as one for specific performance, in failing to show that the complainant had ever offered to perform his part of the contract. (5) The bill fails to show that any tender was ever made of the amount due to the defendant. (6) The bill fails to show that a deed was ever tendered to either of the defendants for execution.

Brickell, Semple & Gunter, for appellant. J. M. Chilton and J. M. Falkner, for appellees.

HEAD, J. On the 22d day of November, 1886, W. T. Burney and wife, for the cash consideration of $4,250, sold and conveyed by deed to A. B. Peck the lands described in the bill. The bill avers that the purchase was negotiated by, and was really made for the benefit of, Charles F. Ashurst, who was the son-in-law of Peck, the latter agreeing to convey the lands to the former upon being repaid the said purchase money, with interest; and so it was that by an instrument in writing executed on the 1st day of December, 1886, the said Peck, reciting the said purchase, agreed that when Ashurst pays or causes to be paid to him the said purchase money, (which in this instrument is stated to be $4,000,) with interest at 10 per cent. per annum, he would make to him (Ashurst) the same warranty title that Burney and wife had made to him (Peck;) and it was further stipulated that it was understood that the contract so entered into was based on a note that Ashurst had that day executed to Peck, and another that he would thereafter execute, covering the said $4,000, with in

terest. Upon the consummation of the purchase, the bill avers, Ashurst went into actual possession of the land, and remained therein until his death, which occurred in the fall of the year 1887, exactly when does not appear. The complainant avers that he does not know whether either of the mentioned notes was in fact executed or not. The recital of the written instrument, however, must be regarded as ground for the assumption that the first one was in fact executed and delivered to Peck. The complainant avers that after the purchase Ashurst made "some considerable payments" thereon to Peck, but he does not know the amount. On the 17th day of January, 1887, Ashurst conveyed, by way of mortgage, his interest in the land to Lehman, Durr & Co., to secure a large debt due in October, 1887, with power of sale on default in John W. Durr and Joseph Goetter or either, who were members of said firm; and on the 1st day of April, 1889, Goetter, in conformity to the trust, executed the power, and sold and conveyed the land, with other lands embraced in the mortgage, to Meyer Lehman for the sum of $3,000. Afterwards, on the 15th day of February, 1890, Lehman conveyed the land to the complainant, James V. Ashurst, who immediately offered to pay to the administrator of said A. B. Peck, who died meanwhile, whatever balance there was due to the estate of A. B. Peck on said purchase, but the administrator refused to accept the payment. The bill avers that on the death of Charles F. Ashurst, in the fall of 1887, said A. B. Peck took possession of the lands, and received the crops and rents of 1887, amounting in value to $1,000 or other large sum, and remained in possession thereafter until his death, receiving the rent of such portion as was rented, and enjoying the use of such portion as was not rented; and that since his death-the date of which is not averred-his administrator, W. D. Peck, as such, has remained in possession, receiving each year the rents, and enjoying the use, as his intestate had done, amounting to specified large sums; and it is insisted that the payments made by Charles F. Ashurst in his lifetime, and the said crops, rents, and values of use and occupation received and enjoyed by Peck and his administrator since, are proper credits on the indebtedness owing by Charles F. Ashurst. The bill is filed by said James V. Ashurst against the administrator and heirs of A. B. Peck to obtain specific performance of the contract of purchase. He prays for an accounting wherein he shall be allowed all just credits on said indebtedness, and offers and submits himself to pay whatever sum may be found due the estate of A. B. Peck thereon, and prays for a conveyance, and for general relief.

It is objected by way of demurrer to the bill that the relief sought cannot be had by this complainant for that the conveyance to Lehman, under the foreclosure sale, and

his conveyance to complainant, are void for maintenance, because upon the facts averred, which we have substantially set forth above, A. B. Peck, or his administrator, must be held to have then had possession of the land adversely to Lehman, Durr & Co. and Lehman. We are of opinion that the presumption, upon the facts as we find them stated, is that the possession taken and held by Peck and his administrator, when the occupancy of Charles F. Ashurst was terminated by his death, was in subordination to the equitable title of the latter's mortgagees, and Lehman, claiming under them, until the refusal of the administrator to perform the contract took place. Upon entering into the contract of sale by Peck with Charles F. Ashurst equity treated Peck, the vendor, as the owner of the purchase money, and as trustee of the legal title to the land for the use of Ashurst, the vendee, and for his, the vendor's, security in the collection of the purchase money, by virtue of the lien which equity raises, in the nature of a mortgage, in favor of the vendor who retains in himself the legal title; Ashurst, the vendee, being regarded as the real owner of the land, and as trustee of the vendor for the purchase money. The mere possession and pernancy of rents and profits by Peck and the administrator created no implication of hostile enjoyment. They were presumptively subservient to the equitable ownership, and it devolves upon him who would claim that such possession was in fact adverse to aver and prove an assertion of actual hostility, so manifested as that actual knowledge thereof, or that which must be regarded as its equivalent, was carried home to the equitable owner. Wimbish v. Association, 69 Ala. 575; 1 Pom. Eq. Jur. $$ 368-372; 3 Pom. Eq. Jur. §§ 1161-1406; 2 Story, Eq. §§ 789, 790; Pom. Cont. §§ 314, 315; Haughwout v. Murphy, 22 N. J. Eq. 531. The present bill may be taken as showing such an adverse assertion from and after the administrator's refusal to perform the contract, but not sooner.

It is argued by the appellees that the bill does not set forth with sufficient certainty the terms of the contract of purchase, in that it fails to show when the purchase money agreed to be paid by Ashurst was payable. We have seen that the written agreement stipulates that Peck would convey when Ashurst "pays or causes to be paid" the purchase money; and, further, that the contract was based on a note then executed by Ashurst, and another note he would thereafter execute covering the purchase money. The only reference in the bill to these notes is the averment that complainant does not know whether they were ever executed or not and, aside from this, there is no averment when the contract was to be performed by the payment of the money on the part of Ashurst. It is averred that Ashurst made some payments before his death

in the fall of 1887. The ground of demurrer upon which the argument is predicated is assigned in the following words: "The bill fails to describe the notes alleged to have been executed for the purchase money, or to show when same was due." It is obvious that the allegation of the bill above referred to, that complainant did not know whether the notes were ever executed or not, was intended by the pleader as the averment of an excuse for the absence of a particular statement of the terms of the contract in reference to the time stipulated for performance on the part of the vendee, if, indeed, there was such a stipulation. It is observed that the bill does not allege that there was such a stipulation, further than it might be inferred there was such from that clause in the written contract that a note had been executed, and that another would be executed, covering the purchase money. What the tenor and effect of these notes were or were to be, whether they expressed or were to express a particular time of payment, does not appear, either by a recital of the contract or averment of the pleader. If the notes, both of them, were in fact executed, the presumption is that they were in the possession of Peck's administrator when this bill was filed; and if the complainant, as he alleges, did not in fact know whether they had been executed or not, and if he made all reasonable effort to inform himself as to their existence and effect without avail, we are of opinion that he would not be without remedy for specific performance of the contract because of his inability to aver affirmatively that time for the payment of the purchase money was or was not expressly fixed by the contract, and, if so fixed, what that time was; but we think rather that, as the terms of the contract, so far as known to the complainant, are peculiarly made to appear in this transaction, the complainant, coming to his rights by assignment from the original vendee, would be justified in assuming, as he has, in effect, done in the present bill, that the contract was to be performed by the vendee within a reasonable time, and as much earlier as the vendee might choose to perform, at least until disclosure from the defendants, representing the vendor, that the terms of the contract fixed the time for its performance. It may

be that the averment simply that complainant does not know whether the notes were executed or not is insufficient to excuse a more specific averment of the terms of the contract, in that it does not show that complainant had done what he ought to have done to inform himself in the premises; but we are of opinion that the demurrer does not sufficiently raise that objection. The demurrer assumes that both the notes were executed, and requires that the bill should describe them, or show when they became due, without exemption from that requirement by reason of any excuse whatever. As

we have said, the pleader intended to aver an excuse, and, if the averment is insufficient, the defect should have been pointed out by the demurrer, so that it might have been obviated by amendment.

It is also demurred that "the alleged right of complainant is stale." We do not understand it to be insisted that the supposed staleness is produced by the mere lapse of time. It appears that the bill was filed about 5 years after the contract of sale was entered into, and about 1 year and 10 months after complainant offered to perform the contract. The argument which proceeds upon this assignment of demurrer is that the complainant has so acquiesced in the assertion by the vendor and his personal representative of possession of the land, and the reception by them of the rents and profits, that a court of equity, in the discretionary exercise of its jurisdiction to enforce executory agreements, should not lend him its aid in the enforcement of the present contract. It is said that the statutory duties of the administrator in respect of the land and its rents, which it must be presumed he has performed, have imposed upon him obligations and liabilities to his trust which he cannot discharge uninjured if he is made to surrender these lands, and account to complainants for the rents and profits he has received; and that complainant, having acquiesced in the exercise of his statutory powers over the land, and the imposition upon himself of these obligations and liabilities, without sooner moving for the relief now sought, should be estopped from asking a performance of the contract. As in reference to the demurrer last considered, we think we are not called upon to pass upon the merit of this argument, for the reason that the demurrer does not properly raise it. The affirmation that the demand is stale does not imply mere acquiescence in special conditions and circumstances which render it inequitable to enforce the demand, but it implies rather that the suitor has slept upon his supposed rights for so great length of time that it may be justly expected that events have become forgotten, witnesses died or removed beyond the reach of parties, and other means of proof lost or destroyed. Bouvier defines stale demand as "a claim which has been for a long time undemanded; as, for example, where there has been a delay of twelve years unexplained." 2 Bouv. Law Dict. 660. And Rapalje defines it as "a demand or claim which has not been pressed or asserted for so long a time that a court of equity will refuse to enforce it." 2 Rap. & L. Law Dict. 1214. The idea involved seems to be the great lapse of time, and not mere changes in conditions, apart from such lapse of time, which render the enforcement of the demand inequitable. We are of opinion, therefore, that good pleading requires, in order to support the argument now made, that the de

murrer point more definitely than in the present case to the facts and circumstances which it is insisted render the complainants' demand inequitable. It is not essential to the maintenance of a bill for specific performance that the complainant, vendee, offer to perform, or tender a deed, before filing the bill. A failure to do so affects only the question of costs. Stevenson v. Maxwell, 2 N. Y. 408; Bruce v. Tilson, 25 N. Y. 194; Morris v. Hoyt, 11 Mich. 9; Irvin v. Gregory, 13 Gray, 215. It is a familiar rule, declared in many of our decisions, that the relation of a vendor of lands, who has retained the title and bound himself to convey on payment of the purchase money, to his vendee, is analogous to that of mortgagee to mortgagor. All the incidents of a mortgage attach to it. We hold, therefore, that such a vendor in possession of the lands is accountable to the vendee or his assignee for rents and profits to like extent that a mortgagee in possession is accountable.

The other grounds of demurrer are so manifestly untenable that we do not discuss them. The decree of the chancery court is reversed, and a decree will be here rendered overruling the demurrers to the bill, and remanding the cause for further proceedings. The defendants will plead to or answer the bill within 30 days, with authority in the chancery court to extend the time, if necessary. Reversed, rendered, and remanded.

ST. CLAIR v. STATE. (Supreme Court of Alabama. Jan. 11, 1894.) EMBEZZLEMENT-WHAT CONSTITUTES -NONTRANSFERABLE ORDERS.

Defendant, having received in payment of wages certain labor checks, in form orders on his employer's treasurer, expressly made "nontransferable," thereafter undertook to sell them to another, who at their maturity gave them to defendant to collect. Held, that as, by the terms of the checks, no property therein could pass to defendant's vendee, money collected on them by defendant belonged to the latter, and he was not guilty of embezzlement because he failed to pay it over to his vendee.

Appeal from city court of Gadsden; John H. Disque, Judge.

John St. Clair was convicted of embezzlement, and appeals. Reversed and remanded.

Amos E. Goodhue, for appellant. Wm. L. Martin, Atty. Gen., for the State.

MCCLELLAN, J. This is a prosecution for embezzlement. The indictment contains two counts. The first count charges that defendant, being the agent of one Holcombe, embezzled certain described evidences of debt belonging to his principal, and which had come to defendant's possession by virtue of his employment as such agent. The second count charges the defendant, being the agent of Holcombe, with the embezzlement of certain money of his principal, which had come