ness that he came into defendant's barber shop, and asked him if he had any whisky, and, on defendant's saying no, but that there was some in a box which belonged to some one else, he said he would take a drink. which he did, and that several times before he had gone into the shop, and, without saying anything, taken a drink of whisky from the box.

Appeal from Shelby county court; John S. Leeper, Judge.

Ed Roberson was convicted of violating the law against selling, giving, or otherwise disposing of intoxicating liquors without a license, and appeals. Affirmed.

The appellant was prosecuted and convicted "for selling, giving away, or otherwise disposing of spirituous, vinous or malt liquors without a license, and contrary to law." There were only two witnesses introduced. Joe Tinney, a witness introduced for the state, and the defendant testified in his own behalf. The tendencies of each of these witnesses' testimony are sufficiently stated in the opinion. The defendant requested the following written charges, and separately excepted to the refusal to give each of them as asked: (1) "If the jury believe the evidence they must find the defendant not guilty." (2) "If the jury believe from the evidence that Ed Roberson neither sold or gave or otherwise disposed of to Tinney any liquor, but simply told him where Shorty had left his liquor in Ed's shop, and Tinney got some of Shorty's liquor, then this would not make Ed guilty and on this evidence alone the jury should find him not guilty." (3) "If the evidence shows that Shorty was engaged in selling liquor illegally and that he came into Ed Roberson's with some whisky in a bottle and left it there, and afterwards Mr. Tinney came into the shop and Ed Roberson told Mr. Tinney where it was, and this was all the connection that Ed had with it, then he is not guilty." (4) "If the jury believe from the evidence that the whisky that the witness Tinney got at Ed Roberson's shop was Shorty's whisky, and that Ed Roberson had no interest in the sale of it, or in the whisky or in the price paid for it, if any was paid, and that he simply informed Tinney where it was, and that Tinney then got some of the liquor without the assistance of Ed Roberson, then this would not make him guilty and the jury should find him not guilty." (5) "If the evidence only shows that Ed Roberson only gave an occasional drink of liquor out of his bottle to Mr. Tinney, who was at the time a visitor to his shop, then this would not make him guilty, and the jury should find him not guilty." (6) "If the jury believe from the evidence that the only connection Ed Roberson had with the whisky was that the whisky was in a box in defendant's shop and that Mr. Tinney came in and asked defendant if he had any whisky and defendant said 'I have none, but there is some in the box that belongs to other parties,' and that Tinney went to the box and poured out a drink and walked

out without paying any money to defendant, and if the jury further believe from the evidence that defendant had no interest in the whisky, then they must find the defendant not guilty." (7) "The court charges the jury that unless it is proved by the evidence that Ed Roberson had some interest in the whisky then they must acquit defendant." (8) "If there is no evidence that defendant own ed the whisky or acted as agent for any one except Tinney, then the jury must acquit defendant.” (9) “If the evidence only shows that Ed Roberson occasionally allowed the witness Tinney to take a social drink out of his bottle or jug or some other bottle or jug that some one had left in his shop, then this would not make him guilty and the jury should find him not guilty." (10) "The court charges the jury that if all that the defendant had to do with the whisky was to inform the witness Tinney that there was some whisky in a box in defendant's shop, and if they further believe from the evidence that the defendant did not give or sell the whisky to Tinney, and had no interest in the whisky, then they must find the defendant not guilty." (11) "If the evidence only shows that Ed Roberson only gave Mr. Tinney an occasional friendly drink out of his bottle that had been left in his shop, then this would not make him guilty and the jury should find him not guilty." (12) "If the evidence only shows that Ed Roberson only gave Mr. Tinney an occasional drink in a friendly way out of his bottle or some one else's bottle that had been left in his shop, then this would not make him guilty, and the jury should find him not guilty."

Browne, McMillan & Leeper, for appellant. Wm. L. Martin, Atty. Gen., for the State.

HARALSON, J. The defendant was prose cuted for "selling, giving away or otherwise disposing of spirituous, vinous or malt liquors, without a license and contrary to law." The proceeding is under a local prohibition law for the town of Columbiana. Acts 1880-81, p. 148. The evidence in the case does not tend to show that the defendant sold the whisky, which he is charged with having disposed of; and, if guilty at all, it must be for having given it away, or with having otherwise disposed of it, in a manner not allowed by law. A sale imports a transfer of the property upon a valuable consideration; and a gift, a transfer of it, gratuitously, or upon a good, as contradistinguished from a valuable consideration. "The more general words, 'or otherwise dispose of,' (as used in this statute) following the more specific or particular words, 'sell or give away,' upon a settled rule of statutory construction,—a larger legislative intention not being clearly expressed,-must be construed as extending only to a disposition ejusdem generis with a sale or gift. They are not to be extended to any and every act which may be said to be a disposition."

Amos v. State, 73 Ala. 501; Reynolds v. State, Id. 3. Whether or not the liquor was given away by defendant, or whether his disposition of it, if he made any, was unlawful, was a matter for the determination of the jury from all the evidence, under proper instructions from the court. We cannot say there was no evidence tending to show that defendant gave the whisky, or disposed of it unlawfully, to Joe Tinney. Tinney testified, that going to defendant's barber shop, he asked him if he had any whisky, to which defendant replied, he did not, but there was some in a box, there, in the shop, which belonged to some other parties; that he then told defendant, if the whisky did not belong to him, he would take a drink, and did so. put the bottle back in the box and walked out, without saying any thing more, or paying anything to defendant for the drink; that he had several times before, gone into defendant's shop to be shaved, and had gone to this same box, in which there was a bottle of whisky from which he would take a drink, without saying anything to defendant about it; that the box was a small one, that defendant used as a waste basket. On this evidence, inferences of defendant's guilt might fairly have been drawn. The procedure favors a device, on the part of defendant, to evade the law, in treating those with a drink who favored him with their patronage, and it requires considerable explanation and protestation of innocence, to keep one from so believing. It was improper, therefore, to give the general charge, as requested by defendant. Coker v. State, 91 Ala. 96, 8 South. 874. The defendant's account of the transaction was, that when Tinney came and asked for the whisky, he told him he had none; that there was some there in a box that belonged to other parties, and Tinney replied, that it was all right; if it was not his, he would take a drink; that Tinney went to the box, but he did not know whether he got the whisky or not; that different persons, his customers, left their whisky in his shop, but that he had never sold, given or otherwise disposed of any whisky to Tinney; that the whisky belonged to one Shorty, who was sitting be hind the door in his shop at the time. If the defendant kept the whisky of his customers in his barber shop, for their convenience to come and drink when they chose, and he allowed others of his customers to come, and ask for whisky, and he would tell them he had none, but there, in a box, was the whisky of these other customers, and those calling for it would, with the knowledge of the defendant, without any dissent from him, help themselves, this would be an illegal disposition of it,-even if defendant had no pecuniary interest or ownership in it,-such as would amount to an evasion and violation of the law. This barber shop was a public house within the prohibition district, and in it, unlike at a man's private dwelling, in social life, the owner cannot sell, give away

or otherwise dispose of, spirituous liquors, in the manner condemned by the statute, not even to the extent of a drink. Bain v. State, 61 Ala. 75; Reynolds v. State, 73 Ala. 3. The evidence tends to show, that the whisky drank by Tinney belonged to Shorty, who was in the barber shop at the time it was pointed out to Tinney by defendant, and it does not show that Shorty claimed the whisky, or said or did any thing to indicate that he owned or controlled it, and defendant said nothing himself, to Shorty, but pointed it out to Tinney; and, there is no evidence that Shorty was engaged in the illicit sale of liquor. The charges asked and refused, are either abstract and misleading, in hypothesizing facts not in evidence, or they ignore all those phases of the evidence, which tend to show, that the whisky was deposited in defendant's barber shop with his knowledge and consent, and that he assumed the control and disposition of it to his customers, other than those to whom it is said to have belonged, when they came and asked for it, and that they drank it with his knowledge and consent, and without any protest from him, or, in this particular instance, from Shorty, who was present when Tinney called for a drink, and were properly refused. Affirmed.

SCOTT v. RENFRO.1

(Supreme Court of Alabama. Dec. 20, 1893.) LIEN FOR RENT-SALE OF TENANT'S FURNITURERIGHT OF PROPERTY.

Where property belonging to a tenant at the time of leasing is placed by him on the leased premises, and remains there till attached by the landlord for the rent. the landlord's rights are superior to those of one to whom the tenant sold the property for a past-due debt, at a time when the tenant had his rent paid in advance for part of the term.

Appeal from city court of Decatur; W. H. Simpson, Judge.

Trial of right of property between John F. Scott, as plaintiff, and Nancy R. Renfro, as claimant. Judgment for claimant. Plaintiff appeals. Reversed.

On the 31st of July, 1888, John F. Scott obtained an attachment and began an action against the Merchants Insurance Company, to enforce his lien as a landlord for the rent of certain offices in a building in the town of Decatur, known as the "Scott Block," which offices were rented by him to the Merchants Insurance Company for the year from April 1, 1887, to April 1, 1888. On the same day of the issuance thereof, the writ of attachment was levied on certain property, consisting of office furniture, then in the offices rented by said insurance company from the said Scott. Upon the levy of this attachment, Mrs. N. R. Renfro interposed a claim to the property so levied upon, and after filing affidavit and bond, as required by law,

the property was delivered to her; and an issue was duly tendered by the plaintiff, in which the claimant joined. Upon this statutory trial of the right of property the evidence tended to show, as is shown by the bill of exceptions, that the plaintiff in the attachment, John F. Scott, rented to the Merchants Insurance Company certain offices in the block of buildings owned by him; that the property levied upon under the attachment was, at the time of the renting, the property of the Merchants Insurance Company, and had, up to that time, been upon the rented premises. The claimant did not, in any way, claim that she had any title or interest in the property at the time of the renting of the premises. She bases her title to the property, as is shown by the evidence, under a bill of sale, purporting to have been made to her by the Merchants Insurance Company on May 24, 1888. She did not attempt to take possession of the property until July 31, 1888, just as the attachment in this action was levied. The evidence further tended to show that on November 5, 1887, the Merchants Insurance Company, issued to the claimant a policy of insurance, insuring certain property belonging to the claimant against loss by fire; that there was loss under this policy, which was adjusted at the sum of $312.42; that not having the money to pay the loss, the Merchants Insurance Company made a bill of sale to the claimant to the property in controversy, on May 24, 1888, as above stated. It was fürther shown that the claimant, through her attorneys, took possession of the property, and was removing it from the premises when the attachment in this case was levied. There was also evidence tending to show that at the time of the sale to claimant, defendant in attachment had paid the rent in advance for several months. Upon the introduction of all the evidence the court refused to give, at the request of the plaintiff, among others, the following charge: "If the jury believe the evidence they must find for the plaintiff." The plaintiff duly excepted to this charge, and also separately excepted to the court's refusal to give the other charges requested by him.

Morris A. Tyng, for appellant. O. Kyle, for appellee.

HARALSON, J. It is not disputed, that the property in question was the property of the Merchants Insurance Company, at the time they rented the premises from the plaintiff, John F. Scott, nor that it was placed by the company on the rented premises and remained there, until the attachment of plaintiff was issued and levied on it; and, the claimant, Mrs. Renfro, the appellee, does not claim, that at the time of the renting of the premises by said insurance company from plaintiff, she had any title to or interest whatever in the property

levied on under the plaintiff's attachment for rent. The only pretense of a right by her to the property, is, that the said insurance company, the lessee of the plaintiff, had paid to plaintiff, for some time in advance, the rent for the offices in which the furniture levied on for rent was placed, and during the time for which the rent was thus paid in advance, the company transferred the title to said furniture to the claimant, who had constructive notice,-the property purchased being at the time in the rented rooms, and as the proof also tends to show, actual knowledge of the tenancy of said insurance company, as lessees of the plaintiff. It was also shown, that the sale and transfer of said property by said company to claimant, was made solely for the purpose of paying a past-due indebtedness by said company to her. If all that the claimant contends for, therefore, be granted,-that she purchased the furniture during a period of the rent term, for which the rent was paid in advance, for the purpose alone of paying a past-due debt by the defendant in attachment to her, the purchase by her would not be good against the claim of plaintiff for his unpaid rent, for the entire rent term. The lien of plaintiff, on the property, for any rent remaining unpaid, was not lost or impaired by this sale to claimant. Aderhold v. Blumenthal, 95 Ala. 66, 10 South. 230; Weil v. McWhorter, 94 Ala. 540, 10 South. 131; Manasses v. Dent, 89 Ala. 565, 8 South. 108; Abraham v. Nicrosi, 87 Ala. 173, 6 South. 293; Ex parte Barnes, 84 Ala. 540, 4 South. 769; Scaife v. Stovall, 67 Ala. 237. The evidence tended to show, without conflict, that there was a balance due the plaintiff. The issue in a contest of this character is, whether the property claimed is the property of the defendant in attachment, and is liable to its satisfaction, and the amount of the plaintiff's debt is immaterial and foreign to the issue. That question may be adjudicated afterwards, on the trial of the case against the defendant in attachment, which has stood in abeyance until the I claim suit has been determined. Dryer v. Abercrombie, 57 Ala. 497; Shahan v. Herzburg, 73 Ala. 59; Abraham v. Nicrosi, supra; Code, § 3005, 3012, as amended. The general charge, on the undisputed facts, should have been given, as requested for the plaintiff. In this view of the case, it is unnecessary to consider the other questions raised. Reversed and remanded.

TORRENT FIRE-ENGINE CO. No. 5 v.
CITY OF MOBILE.
(Supreme Court of Alabama. Jan. 9, 1894.)
LOST DEEDS-QUIETING TITLE-LACHES.

1. A bill to re-establish a lost deed, which fails to show how, when, or by whom the deed was lost, what it contained, what title or interest it conveyed, for what consideration, or by whom paid, but merely states that complainant

The bill in this case was filed by the appellant against the appellee; and sought to have the title of the complainant to a certain lot in the city of Mobile established, and the title of the city of Mobile, as it appeared on the records, divested out of said city, and removed as a cloud on complainant's title. There were several demurrers interposed by the complainant, which were sustained by the chancellor, and the complainant appeals. Reversed and remanded.

The bill alleged, in substance, that the com plainant was a fire-extinguishing corporation, and that as said corporation, owned a fire engine and other apparatus, and upon determining to buy a lot, upon which to build a house, it purchased from the defendant the lot now in controversy, and erected a building thereon, which was used as an engine house; that this purchase was made in 1850, and that the complainant took possession thereof at once, and from that time up to the filing of the bill, July 30, 1892, it had been in the exclusive, open, notorious, continuous and undisturbed, adverse possession of said property, using and claiming the same openly, notoriously, and continuously as its own property, against all the world; that about a year before the filing of the bill it undertook to sell the said property, and complainant discovered for the first time, that the title to said property was still upon the records in the name of the city of Mobile; that upon the request of the complainant the city of Mobile declined to execute a quit claim deed to the purchaser, and has since that time, set up a claim to some interest in the said property. The bill contains the further allegations that the complainant cannot find any deed to it from the city of Mobile, but it charges that the legal title to said property was, in fact, conveyed to it by the said city, and the deed covering the same, was not recorded, and had, in some manner unknown to the complainant, been lost or destroyed. By amendment it was further alleged that if the complainant was mistaken in the allegations of the original bill, and that the property was not, in fact, conveyed to it by the city of Mobile, such conveyance was not recorded, and in some manner was lost

or destroyed, still the complainant had a legal title to said property by adverse possession, which was shown by the allegations of the original bill-having been in adverse possession thereof for 40 years. The relief, in its double aspect, as prayed for in the bill, is sufficiently stated in the opinion. The defendant interposed several demurrers to the bill, among which were, that the simple averments of the bill that the deed executed by the defendant to the complainant had been lost, is not sufficient to give equitable jurisdiction; that the averments of the bill were insufficient to give a court jurisdiction to remove a cloud on complainant's title; that by the averments of the bill the complainant is shown to have been guilty of laches in not having, heretofore, asserted his right in the premises; and that it is not shown by the averments of the bill that the complainant had the right to acquire property. The chancellor sustained the several grounds of demurrer, and on this appeal his decree is assigned as error.

Gregory L. & H. T. Smith, for appellant. Pillans, Torrey & Hanaw, for appellee.

The

HARALSON, J. bill in this case is filed in a double aspect: First, on the theory, and on allegations to support it, that the city of Mobile conveyed to complainant the lot of land referred to in the bill, and that the deed conveying the same was not recorded, but was, after the same had been duly executed and delivered, in some manner unknown to complainant, lost or destroyed; and on this aspect of the case, complainant seeks relief, on the ground that the recorded deed of the city from its grantor, executed in the year 1849, is a cloud on complainant's title, which interferes with its making sale of said lot, which cloud, it seeks to have removed by having its title to the property established and quieted, and the property decreed to belong to complainant: second, on the theory, that complainant has the legal title to the property by adverse possession, having, as alleged, been in the exclusive, open, continued, notorious and undisturbed possession and occupation of said property, using and claiming the same openly, notoriously, continuously and adversely against all persons, from 1850, the date of its alleged deed from the city, until the present time, on which ground, it seeks relief; and the relief sought in each alternative aspect of the case, is the same, in that, in each, complainant seeks to have its title established and quieted, and the title vested in the city by virtue of its deed to the property, from its grantor, to be divested, and said deed removed, as a cloud on complainant's title.

1. There can be no question of the authority of a court of chancery, to re-establish a deed which has been lost or destroyed by accident; but, it seems to be well settled, that

the mere loss of a deed is not always ground for coming into a court of equity for relief, on account of such loss or destruction, for, if there is no more than that in the case, a court of law may afford just relief, since it will admit evidence of the loss and contents of a conveyance, just as a court of equity will do. So, to enable one to come into equity for relief, in case of a lost deed, he must show that there is no remedy at law which is adequate and adapted to the circumstances of his case. "The bill," says Story, "must always lay some. ground, besides the mere loss, to justify a prayer for relief, as that the loss obstructs the rights of the plaintiff at law, or leaves him exposed to undue perils in the future assertion," and, it might have been added, enjoyment, "of such rights." 1 Story, Eq. Jur. § 84; Lancy v. Randlett, 80 Me. 169, 13 Atl. 686; Donaldson v. Williams, 50 Mo. 407; Griffin v. Fries, (Fla.) 2 South. 266; Cummings v. Coe, 10 Cal. 529. The bill in this case was not sworn to, and it fails to show how, when or by whom the deed was lost. It contains no description of the contents of the deed, the title or interest conveyed by it, nor the consideration paid and by whom paid. It merely states, "that the legal title to said property was in fact conveyed to it by said city, and that the deed conveying the same was not recorded, and was, after the same was duly executed and delivered, in some manner unknown to complainant, lost or destroyed," and that it caused said lot to be purchased and paid for. It therefore presents insufficient grounds for relief on this phase of the case, and the grounds of demurrer interposed, questioning relief based on this theory, were properly sustained. 1 Story, Eq. Jur. §§ 82, 88; Hoddy v. Hoard, 2 Ind. 474; Coop. Eq. Pl. 125, 126.

It

2. Of the second alternative, on which the bill seeks to proceed, it may be said, that "a court of equity will not interpose to prevent or remove a cloud which can only be shown to be prima facie a good title, by leaving the complainant's title entirely out of view. is always assumed, when the court interferes, that the title of the party complaining is affected by a hostile title, apparently good, but really defective, and inequitable by something not appearing on its face." Rea v. Longstreet, 54 Ala. 294; Lytle v. Sandefur, 93 Ala. 399, 9 South. 260. The test, as we have heretofore laid it down is,Would the owner of the property in an action of ejectment brought by the adverse party, founded upon the deed, be required to offer evidence to defeat a recovery? If such proof would be necessary, the cloud would exist. If the proof would be unnecessary. no shade would be cast by the presence of the deed. In this case, if complainant were sued by the city for this land, in an action of ejectment founded on the deed from its grantor, it, complainant, would, necessarily, have to introduce oral proof of its adverse

We have

possession, to defeat a recovery. accordingly held, that when adverse possession is relied on by a complainant, as a ground for the removal of a cloud on his title, the right of necessity, must be effectuated by extraneous evidence, and equity may always be invoked, in the absence of legal remedies, to quiet a title thus resting in parol. The grounds of demurrer which question the insufficiency of the bill, to remove a cloud on complainant's title, should have been overruled, and the bill retained as one for that purpose. Echols v. Hubbard, 90 Ala. 309, 319, 7 South. 817; Marston v. Rowe, 39 Ala. 722; Arrington v. Liscom, 34 Cal. 365; Moody v. Holcombe, 26 Tex. 714. 3. It is objected, on demurrer, that complainant has delayed too long in filing this bill, and is guilty of such laches as bar its right of relief. The city has no right founded on its deed, which would enable it to maintain or defeat a suit for the land, as against complainant's plea and proof of adverse possession, as set up in the bill. Whom then did the alleged laches of complainant injure, and who has any right to complain, on that score? If any rights have been lost by laches, it has been by the city, in acquiescing so long in complainant's claim. One who has acquired title by adverse holding, cannot be said to be guilty of laches in not bringing a suit to remove, as a cloud, the title of another, who disputes his title by adverse possession. Long delay on the part of him, who might have dispossessed the adverse holder, by suit begun in time, is the very basis of the title of the latter. The lapse of time which the law allows as a foundation of the title by adverse possession, cannot be made the instrument or means for impairing or destroying one's rights and privileges growing out of that title.

4. The bill was not subject to demurrer on the ground, that it does not aver that the complainant corporation had the power, under its charter, to acquire and hold land. Boulware v. Davis, 90 Ala. 211, 8 South. 84; Alabama Gold Life Ins. Co. v. Central, etc., Ass'n, 54 Ala. 73.

Reversed and remanded.