for Mrs. Ashford, in aid of her claim to the other lands sued for, and that he failed to do so. This is denied. We do not think the proof in regard to the last-alleged promise and its breach renders it necessary that we should comment upon it. The result of said agreement of compromise was that the Prewitts, husband and wife, and their solicitors, ceased to give attention to the cause, ceased to look after it, and prepared and offered no proof on its final hearing. They strictly observed and kept their agreement to make no further defense to the said suit of Mrs. Ashford. In October, 1877, Mrs. Ashford's suit to enforce a trust in the lands was brought to a final hearing. She had a recovery as to the other lands sued for; and the Prewitts not being represented, and offering no proof, it was decreed that she was entitled to the lands south of the railroad,-the lands which are the subject of this suit. The decree of the chancellor declared that the legal title was vested in her, but no deed was made, or ordered to be made. Some steps were afterwards taken to get rid of this decree, but nothing was accomplished by them. On an appeal from it to this court, it was affirmed on certificate, no transcript having been filed. The case of Liles' Adm'r v. Prewitt was not finally disposed of in this court until October, 1881, when it was affirmed; the court holding that Josephine Prewitt's title under her deed from Richard Prewitt was paramount to the claim of the creditors of the latter. Richard Prewitt died in 1882, and in the year 1887 J. B. Moore delivered to his heirs the deed which Mrs. Ashford had placed in his hands, as an escrow, in 1875. In 1887-88 the decree which Mrs. Ashford had recovered against the Prewitts in 1877 was executed, and she was put in possession of the lands which are the subject of this suit, thus evicting Mrs. Prewitt and her subvendees. Thereupon, the persons thus evicted brought their several statutory real actions against Mrs. Ashford for the purpose of regaining the possession. Those suits were decided by the circuit court in favor of Mrs. Ashford; but on appeal to this court the judgments of the circuit court were reversed, this court holding that the legal title to the land was not in Mrs. Ashford, but was in Mrs. Prewitt and those holding under her, by virtue of Mrs. Ashford's quitclaim deed. Prewitt v. Ashford, 90 Ala. 294, 7 South. 831. One principle declared by this court was that the facts of the case did not bring it within the influence of section 3595 of the Code of 1886, and, not being governed by that statute, the "decree rendered by the chancery court, purporting to divest the legal title to land out of one person, and vest it in another, does not, proprio vigore, confer a legal title, which can avail anything in an action at law." This court further declared that "the plaintiff, on the facts proved, would have been entitled to the general affirmative charge in his favor." The object of the pres

ent bill by Mrs. Ashford was and is to enjoin those statutory real actions for the recovery of the possession of the lands, and to obtain a decree declaring that, by virtue of the decree in her favor rendered in 1877, she became clothed with a paramount equity, which dominates the title of Mrs. Prewitt and those claiming under her. The case was tried on pleadings and proof, and the chancellor denied her all relief, and dismissed her bill. From that decree the present appeal was prosecuted.

In Jones v. Iron Co., (Ala.) 10 South. 635. the case of Prewitt v. Ashford was overruled, as to the principle noted above. Under the later ruling, if held applicable to this case, we would feel forced to hold that the decree of the chancellor rendered in the former suit in 1877 vested the legal title in Mrs. Ashford, so far as the court was then capable of so vesting it. But, to obviate any wrong or injustice that might grow out of the change, we added this clause to that opinion: "That no injustice may be done to litigants who, under the influence of the decision made in the case of Prewitt v. Ashford, supra, have instituted proceedings to procure the legal title, we declare and hold that as to such cases the case of Prewitt v. Ashford operates as a rule of property." The effect of this declaration-which we have no intention of departing from-is to hold that the decree of 1877 did not clothe Mrs. Ashford with a legal title to the property sued for, but left it to be governed by Prewitt v. Ashford, 90 Ala. 294, 7 South. 831.

It is contended for appellant that the effect of the decree in Ashford v. Prewitt et al. in 1877 was to bar and cut off all claim to the property involved in that suit, as against all parties to it, and, inasmuch as Mrs. Prewitt was a party, she is concluded by the decree, and will not be heard to assert any rights in opposition to it. We regard this as the question of merit on this appeal.

In the original suit of Mrs. Ashford v. the Prewitts et al.,-the suit of 1871,-J. B. Moore was solicitor for the Prewitts. The deed in escrow was placed in his hands, to be delivered to Richard Prewitt in the event the case of Liles' Adm'r v. Prewitt was decided in favor of the latter. It is contended for appellant that, inasmuch as said Moore was the attorney of Prewitt in that litigation, he could not be made the agent to receive and hold the deed in escrow, with authority to deliver to his own client on a contingency. The logic of this argument, if sound, would lead to this result: The delivery to Moore would be a delivery to Prewitt, his client, making it a completely executed conveyance,-an operative title from that time. If that be the true doctrine, as applied to the facts of this case, the legal title to the lands was vested in Richard Prewitt, and through him in his wife, in 1875. Having the title, they could and should have defended the suit of 1871; and, failing to do

so, the decree of 1877 in favor of Mrs. Ashford is a bar to the assertion of any title the Prewitts then held. Shelby v. Tardy, 84 Ala. 327, 4 South. 276, is relied on in support of this contention. It employed this language: "The general rule is that a delivery of a deed to a grantee or to his attorney cannot be a delivery in escrow." The case of Duncan v. Pope, 47 Ga. 445, 451, had said, "If delivered to the grantee or his agent, the delivery is complete, and the paper is not an escrow." What is said in Shelby v. Tardy is certainly the general rule. As a general rule, the attorney or other agent simply represents-stands in the shoes of-the client or principal; and a delivery to him as such attorney or agent is a delivery for the benefit of the principal, and is equivalent to a delivery to the principal. The controlling reason why a delivery to the principal or to his agent, as such, cannot be shown to be a delivery in escrow, is that when a deed is found in the possession of the grantee the law presumes it is rightfully there, and that it has been delivered in consummation of the contract of sale. To allow parol proof that it was not a delivery in absolute right, but to take effect conditionally, would let in all the mischiefs intended to be guarded against by the statute of frauds. Miller v. Fletcher, 27 Grat. 403. In Railroad Co. v. Iliff, 13 Ohio St. 235, it was decided that "the mere delivery of manual possession of the deed is not necessarily a delivery of the deed; and, in cases where the acceptance of an agency from both involves no violation of duty to either, it is competent for the releasor to make the agent of the releasee his own agent for the purpose of holding the deed as an escrow, and returning it to him (the releasor) in case of the nonperformance of a stipulated condition. There is no such personal identity between the releasee and his agent as to preclude the latter from becoming the depositor of an escrow." In Watkins v. Nash, L. R. 20 Eq. 262, the court ruled that: "The delivery to the solicitor of the grantee of an instrument executed by the grantor will not convert the instrument from an escrow into a deed, provided the delivery is of a character negativing its being a delivery to the grantee. In Tied. Real Prop. (Enlarged Ed.) § 815, is this language: "It is always necessary, in delivering a deed as an escrow, to be explicit as to the intent with which the delivery was made; and it would be much more prudent if the delivery is accompanied by a memorandum in writing, explaining the character of the delivery to the bailee, and the terms of the condition upon which the delivery to the grantee depends. * * * In an escrow, no title vests in the grantee until the second delivery." See, also, 1 Devl. Deeds, § 316, and note 4; Trust Co. v. Cole, 4 Fla. 359; 5 Am. & Eng. Enc. Law, 450, note 1. In this case, as we have shown above, we are not left in doubt, nor required to rely on the dangers and uncertainties at

tending oral testimony, in arriving at Mrs. Ashford's intention in delivering the paper to Mr. Moore. Her selection of him to be her agent, and the authority she conferred upon him, are all expressed in writing signed by her, attested by her solicitor, and delivered to Moore contemporaneously with the paper with which he was intrusted, and which he was to deliver on the happening of an event, at that time contingent. We hold that the delivery in escrow was legal and valid, and that the paper did not take effect as a deed delivered, at the time it was placed in his hands.

It is contended for Mrs. Ashford that the affirmance of the decree and judgment in the case of Liles' Adm'r v. Prewitt was not the sole contingency, nor the sole consideration, on which the quitclaim deed was to be delivered. We confess that we are not satisfied by the testimony either that an additional agreement was made, such as is claimed, or that, if made, it has been violated. We will not discuss that proposition further, but decline to consider it as exerting any influence in reaching a proper conclusion in this case.

It will be remembered that the event upon which the quitclaim deed was to be delivered did not transpire until 1881. Till then, there was no authority to deliver the paper; and, if it had been delivered, it would have vested no title, legal or equitable, in the grantee. It was not delivered until after the affirmance of Liles v. Prewitt. What effect does the decree of 1877, rendered in the original suit of Ashford v. Prewitt et al., have, on the right of Mrs. Prewitt and those holding under her to defend this suit? She was a purchaser for value from Richard Prewitt, and held his deed with full covenants of warranty. Whatever title he acquired after executing that deed, no matter how acquired, passed, eo instanti, to Mrs. Prewitt, his grantee, by virtue of the covenants in his deed to her. Chapman v. Abrahams, 61 Ala. 108, and authorities cited. In Frost v. Beekman, 1 Johns. Ch. 288. Chancellor Kent said: "Every deed takes effect from the delivery, and the reasonable inference from the transaction is to consider the deed as operating from the time of the performance of the condition and the actual delivery to the grantee." In Tiedeman on Real Property, (section 815,) the author says: "The importance of distinguishing escrows from other deeds like those above described lies in this fact: Escrows can operate only from the time that the condition is performed. A delivery before the performance of the condition will not have the effect of passing the title to the grantee, not even against innocent purchasers for value of the grantee.” Black v. Shreve, 13 N. J. Eq. 455. In 5 Am. & Eng. Enc. Law, 450, the principle is thus expressed: "If the deed is handed to a stranger, with instructions that the delivery of the deed shall depend upon the happening of an uncertain event, it is an escrow.

Escrows can only operate from the time when the condition is performed. A delivery before the performance of the condition will not have the effect of passing the title to the grantee. In an escrow, no title passes until the second delivery." To the same effect, see 6 Am. & Eng. Enc. Law, 867. In 3 Washb. Real Prop. marg. p. 585, it is said: "Whether putting a deed into a third person's hands is a present delivery, or an escrow, depends upon the intent of the parties. If the delivery depends upon the performance of a condition, it is an escrow; otherwise, it is a present grant. * But if it be expressly delivered as an escrow, to be delivered at a future time, it is not a present conveyance. When a deed has been

delivered as an escrow, it has no effect as a deed until the condition has been performed, and no estate passes until the second delivery has been made, though, when such second delivery has been made, it relates back to the first for many purposes, and is considered as a consummation of an inchoate act then begun." Id. p. 586: "Until the performance of the condition, it [the deed] must remain a mere scroll in writing, of no more efficacy than any other written scroll; but when, upon the performance of the condition, it is delivered to the grantee or his agent, it then becomes a deed, to all intents and purposes, and the title passes from the date of the delivery." Continuing, on pages 586, 587, the same author says: "If, at the time of the first delivery, the lessor be a feme sole, and before the second delivery she take a husband, or if before the second delivery she dieth, in this case, if the second delivery shall not have relation to this intent to make it the deed of the lessor ab initio, but only from the second delivery, the deed, in both cases, should be void; and therefore, in such case, for necessity, and ut res magis valeat quam pereat, to this intent, by fiction of law, it shall be a deed ab initio, and yet in truth it was not his deed till the second delivery." See Hinman v. Booth, 21 Wend. 267; Hathaway v. Payne, 34 N. Y. 92; Coleman v. Lansing, 65 Barb. 54; Flagg v. Mann, 2 Sumn. 486, Fed. Cas. No. 4,847.

We have now stated the rule which declares when an escrow deed takes effect, and we have stated the exceptions, the reason and necessity they rest on, and the extent of their operation. None of the exceptions affect this case, for Mrs. Ashford is not shown to have married or died after placing the writing in J. B. Moore's hands as an escrow. It had no effect as a conveyance of property, or any interest therein, until the happening of the event on which it was to be a second time delivered. Till then, it could not be made the ground of an action or defense, either at law or in equity. Malloney v. Horan, 49 N. Y. 111. We hold that the decree of 1877, rendered in the suit of 1871, is no bar to the defense set up in this case, and that the quitclaim deed of 1875, under the

testimony shown in this record, is a complete defense to this suit. The decree of the chancellor is affirmed.

STROUSE v. LEIPF.

(Supreme Court of Alabama. Feb. 7, 1894.) LIABILITY OF MARRIED WOMAN-BITE OF VICIOUS DOG-REVIEW ON APPEAL-HARMLESS ERROR.

1. Error in sustaining a demurrer to a special plea is harmless if the question sought to be presented by such plea is subsequently passed on by the jury.

2. A wife living with her husband on premises owned by her is not liable for injuries caused by the bite of a vicious dog kept on such premises, though Code, § 2345, provides that a married woman shall be alone liable for her torts.

Appeal from circuit court, Mobile county; James T. Jones, Judge.

Action by Elizabeth Leipf against Estra Strouse for injuries from the bite of a dog. Judgment for plaintiff. Defendant appeals. Reversed.

The defendant pleaded, in abatement to the complaint, that she was a married woman living with her husband at the time of the alleged injury, and he was the head of the family, and had control of the premises where the dog was kept, and had control of the dog.

To this plea the plaintiff demurred on the ground that the matters alleged in said plea did not relieve the defendant from liability for keeping the dog, and the injuries arising therefrom. The court sustained this demurrer. The defendant pleaded the general issue, and the cause was tried on that plea, and a special plea alleging that the complainant teased and irritated the dog, and thus brought the injury on herself. Upon the introduction of all the evidence, the defendant, among others, requested the court to give the following charges, and separately excepted to the court's refusal to give each of them as asked: (6) "Defendant asks the court to charge the jury that if they believe from the evidence that the defendant, Estra Strouse, and Simon Strouse are husband and wife, and resided together as such husband and wife at the time plaintiff was injured by the dog, and that the dog was kept on the premises where they resided, then the husband was the keeper of the dog, and they must find for the defendant." (7) "Defendant asks the court to charge the jury that if they believe from the evidence that defendant was, at the time of plaintiff's injury, a married woman residing with her husband, Simon Strouse, on the premises where the dog was kept, then, in law, the husband was the keeper of the dog, and they must find for defendant."

Overall, Bestor & Gray, for appellant. Gregory L. & H. T. Smith, for appellee.

STONE, C. J. This suit was brought by appellee to recover damages for alleged in

juries suffered from the bite of a dog. The suit is against Estra Strouse, and the complaint charges that "the defendant kept, and for a long time prior thereto had kept, a dog of savage and ferocious nature, and on, to wit, the 21st day of February, 1891, the defendant so negligently kept said dog that it escaped from the premises and attacked the plaintiff, and bit and tore and lacerated her, to her damage in the sum of * * *. The plaintiff avers that the defendant had notice of the savage and ferocious nature of said dog prior to the matters hereinbefore complained." The complaint then claims special damages for being thereby disabled to perform customary work, for expense of medical treatment, and for necessary nursing. There is a claim of a specified sum as damages sufficiently large to cover the recovery. There was a demurrer to the complaint, which the circuit court rightly overruled. The defendant interposed a plea, sworn to, which is styled a "plea in abatement." This plea was demurred to, the demurrer sustained, and this ruling is the subject of one of the errors assigned. The plea avers that when the act was done which gave rise to the suit "she was a married woman, the wife of Simon Strouse, who is now living in the city and county of Mobile, state of Alabama; that she was not at said time separated or living apart from the said husband, but they were living together in conjugal and marital relations." This clause of the plea does not negative the idea that the act complained of was solely the act of the wife. At common law this would have been a good ground of abatement. Under that system a suit could not have been maintained against the wife alone, on the facts charged in the complaint in this case. It would have been necessary to sue the husband jointly with the wife. Pinkston v. Greene, 9 Ala. 19. Our statute has changed the common law on this subject. Section 2345 of the Code declares that the husband is not liable for the torts of the wife, "in the commission of which he does not participate; but the wife is liable for her torts, and is suable therefor as if she were sole." This has changed the entire law as to the manner of suing a married woman, and has rendered it improper to join the husband when the charge is that the wife herself committed the tort. 14 Am. & Eng. Enc. Law, p. 647, and note 1, on pages 648, 649. The effect of our statute has been to render in large degree, if not entirely, the matter set up in the first part of this plea nonavailing as a defense in abatement. whole scope, if available in any conditions, would seem to be confined to its effect as a bar to the action. This plea has another averment, namely: "That the said husband was at said time, prior thereto, and ever since the head of the family and the household, and had control of the said dog, and of the premises where the said dog was kept,

*

Its

and where said occurrence is said to have taken place." This averment is in no sense matter in abatement. If true, it is equiva lent to the general issue, is a denial that the defendant kept the dog, and is a perfect bar to the action if made good. Pleas in abatement and pleas in bar cannot be pleaded together, and it may be that the latter averment would be construed as a waiver of the matter relied on in abatement; but we need not decide this. Defendant interposed the plea of the general issue, and under that plea was not only entitled to make all defense she could have made under the plea to which the demurrer was sustained, but she actually introduced proof, and had the jury pass on the identical question she had sought to present by the special plea. This, under all the authorities, cured the error, if any had been committed, in sustaining the demurrer to the latter clause of the special plea.

The doctrine is well settled that the owner or keeper of a domestic animal which is vicious, and prone or accustomed to do violence, having knowledge of such violent disposition or habit, must safely and securely keep such animal, so that it cannot inflict injury. Whether or not there was special negligence in permitting the dog's escape from the premises is not the inquiry. The keeper must, at his peril, safely keep such animal. Such is the condition on which the ownership or custody of known vicious animals is tolerated. Ownership or custody of such vicious animal is not one of the natural, inherent rights of property. It is a qualified or restricted right,-qualified by the condition that the animal can be, and is, safely confined and kept. Cooley, Torts, 343 et seq.; 1 Add. Torts, § 261; Whitt. Smith, Neg. 99; 2 Shear. & R. Neg. §§ 628-631; The Lord Derby, 17 Fed. 265; 1 Am. & Eng. Enc. Law, p. 581; Garlick v. Dorsey, 48 Ala. 220; Nolan v. Traber, 49 Md. 460. Previous knowledge of the animal's vicious habits must be alleged and proved. But positive proof is not always necessary. It may be inferred from circumstances. But the knowledge of the vicious habits of an animal need not refer to circumstances of exactly the same kind. All that the law requires to make the owner or keeper liable is knowl edge of facts from which he can infer that the animal is likely to commit an act of the kind complained of. 1 Am. & Eng. Enc. Law, p. 582, and note.

The pivotal question in this case is whether Mrs. Strouse, the wife of Simon Strouse, living in the same house and in marital relations with him, can, under the facts of this case, be adjudged guilty of the tort complained of. Let us first ascertain precisely what was done which led to plaintiff's alleged injury, or sheds light on the circumstances attending it. We premise that what is here stated is proved by all the testimony bearing on the question or questions, without

a shade or semblance of conflict: The house and premises in which Mr. and Mrs. Strouse lived together as husband and wife was the property of Mrs. Estra Strouse, the defendant in this suit. They lived there as husband and wife, having their children around them, and had lived at the same place for many years. A dog had for years been on the premises, not otherwise confined than by the inclosure of the lot. In the daytime, when neither Mrs. Strouse nor her husband was at home, the dog escaped through the back gate of the lot, and inflicted the injury complained of, in an open, public alleyway which extended across, from street to street, at the rear of the premises. No special act of negligence-in fact, no direct agency-is charged either against Simon or Estra Strouse, in immediate connection with the escape of the dog at the time it took place. The immediate cause, according to the testimony, was the act of a visiting stranger. But, as we have shown above, negligence in permitting the dog to escape from the inclosure was not essential to the maintenance of this action. The fault and liability for the injury which ensues are established according to legal requirements, when it is shown that a vicious animal, prone, and known to be prone, to inflict personal injuries, is kept, and such animal escapes from confinement and inflicts injury. This constitutes an actionable tort, perpetrated by the keeper of such animal. That there was testimony tending to prove the vicious, if not dangerous, nature and temper of the dog, and tending to charge his keeper with a knowledge of such his evil disposition, cannot be gainsaid. A verdict finding such to be the fact could not be set aside as unsupported by testimony. The testimony as to the ownership, custody, or keep of the dog was as follows: Plaintiff testified: "It was Mrs. Strouse's dog. She would go to the butcher wagon, and ask for meat for the dog.

She

got the dog from Mr. Hayes, who is now dead. I heard Mrs. Strouse say that Mr. Hayes gave her the dog when it was a small puppy. Mr. Strouse's cook fed the dog. I do not know who took care of him." This was the entire testimony for plaintiff on this question. For defendant, Strouse and his wife testified that Hayes or Haas gave the puppy to Mr. Strouse; that he had always owned him, and gave directions as to his being fed. Their two children and the cook confirmed them in this testimony. It is not our intention to compare the relative weight of this conflicting testimony.

The authorities are uniform that the husband is the head of the family, so long as the marital relation is maintained. He determines where the home shall be, is entitled to the wife's labor and services, has the right to have her society, controls the home and the household, and, with limited exceptions, she must obey his commands. In domestic management she is not presumed to

And

have an independent will of her own. our statutes securing to married women their separate estates have wrought no change in these relative rights and duties that affect the questions presented in this case. In Hanberry v. Hanberry, 29 Ala. 719, it was said: "It is settled law that the domicile of the wife follows that of the husband." In Firebrace v. Firebrace, 4 Prob. Div. 63, 67, it is said: "The domicile of the wife is that of the husband." This was said in 1878, after the enactment of the married woman's act in England. In Re Cochrane, 8 Dowl. 630, 635, Coleridge, J., replying to the contention "that the wife, as to her residence and manner of passing her time, was independent of her husband," said: "But our law has not so limited his rights, nor rested them on so narrow a foundation. Although expressed in terms simple almost to rudeness, the principle on which it proceeds is broad and comprehensive. It has respect to the terms of the marriage contract, and the infirmity of the sex. For the happiness and honor of both parties it places the wife under the guardianship of the husband, and entitles him, for the sake of both, to protect her from the danger of unrestrained intercourse with the world, by enforcing cohabitation and a common residence." In the same opinion he quoted Lord Mansfield as saying: "The husband has, in consequence of his marriage, a right to the custody of his wife; and whoever detains her from him violates that right, and he has a right to seize her wherever he finds her." In Ashbaugh v. Ashbaugh, 17 Ill. 476, the court said: "In contemplation of law, the husband and wife are one person, and her residence follows that of the husband." This principle was reaffirmed in Davis v. Davis, 30 Ill. 180, and in Kennedy v. Kennedy, 87 Ill. 250. In Elijah v. Taylor, 37 Ill. 247,-a case controlled by their statute securing to married women the ownership of their property, the court employed this language: "We desire to proceed cautiously in the construction of that act, because, although passed without much consideration, it involves interests of great magnitude, and questions of no little difficulty. All that we deem it necessary to say in regard to the case before us is this: That where the husband, as the head of the family, occupies and cultivates the land of the wife, he must be considered as occupying it with her consent, for the common benefit of the family; and the products of his toil upon such land are as much his property, notwithstanding the act of 1861, as if he had occupied, as a tenant, land rented from some third person. Any other rule would plainly lead to great confusion, and open a wide door to fraud." In Boyce v. Boyce, 23 N. J. Eq. 337, 348, the principle is thus expressed: "The wife is bound to follow her husband when he changes his residence, even without her consent, provided the change is made by him in the bona fide