10. Power of all the shareholders to convey corporate property as
against the corporation and those holding under it.-All the
stockholders of a private business corporation, owing no
debts, the substantial, beneficial, ownership of the corporate
property being in them, may execute a mortgage on the cor-
porate property to secure their individual debt, which is
valid in equity as against the equitable demands of subse-
quent purchasers or incumbrancers, with notice, from the
corporation. Ib. 168.
11. Case at bar.-Stockholders in private business corporation, not
indebted, sold their shares to the remaining stockholders,
who, as security for the purchase money, gave the notes and
mortgage of themselves individually and of the corporation
conveying the corporate property: Held, that the mortgage
passed the equitable title of the shareholders in the corporate
property, and was valid, in equity, against subsequent mort-
gagees of the corporation, with notice. Ib. 168.
1. Concurrent use of streets for quasi public improvements.-An
electric street railway company, having a right to the use of
the streets of a city, equal, but not superior, to the right of a
telephone company to a similar use of the streets, is bound
to exercise reasonable care in constructing its works, and is
liable to the telephone company for damages resulting from
the negligence of the street railway company. Ib. 144.
2. Case at bar. If an electric street railway company, in erecting
its poles and wires along the streets of a city already occu-
pied by a telephone system, so construct same as to touch and
cross the wires of the telephone company, and so as to cross-
circuit and ground the wires of the latter, and thus prevent
the use of the telephone wires by subscribers, and on com-
plaint being made to the general manager of the electric rail-
way company he refuses to right the wrong, and threatens
to tear down the wires and poles of the telephone company
unless the latter removes them, such conduct is an unwar-
ranted usurpation, amounting to a trespass, and tending to a
multiplicity of suits, which a court of equity will interfere
by injunction to prevent. Birmingham Traction Co. v. Sou.
Bell Telephone & Telegraph Co., 144.
3. Additional servitude.-The construction and operation of an elec-
tric street railway with municipal consent, along a public
street, and conforming to its grade, with no special injury
to the fee, is not the imposition of an additional servitude
for which the owner of the fee can demand compensation.
Birmingham Traction Co. v. Birmingham Ry. & Elec. Co., 137.
See also EMINENT DOMAIN; MUNICIPAL CORPORATIONS; NEGLIGENCE.
1. Sufficiency of plea to petition.-A plea to a petition to substitute
lost records in which the defendants "deny all the allegations
contained in said petition," is not demurrable. Whitney v.
Jasper Land Co.. 497.
2. Proof of instrument and record to be substituted.-On an appli-
cation for the substitution of a lost will and the record of its
probate, the court is to be satisfied from the evidence ad-
duced, of the former existence and contents of the instrument
and the record of it, and may receive affidavits, or any legiti-
SUBSTITUTION OF RECORDS-Continued.
mate testimony, oral or written. The substitution should be
made only on clear and satisfactory evidence of the former
existence, contents, and loss of the record proposed to be
substituted. Ib. 497.
3. Legal sufficiency of record proposed to be substituted.-When a
substantial copy of the lost or destroyed record is satisfac-
torily proven, it must, on application, be substituted, and
when substituted it has the same effect and efficiency, no more
nor less, than the original would have had; the legal suffi-
ciency of the record to support the final judgment or decree
rendered, or whether regular or irregular, or whether error
intervened in the proceedings ending in the judgment or de-
cree rendered, is not to be considered. Ib. 497.
1. Husband and wife; position of signatures to note and mortgages
not conclusive.-Upon the issue as to whether the debt secured
by mortgage on the lands of a married woman is that of the
husband or of the wire, neither the relative positions of the
signatures to the mortgage and note, nor the fact that the one
or the other signed first, exerts a controlling influence. The
question must be determined by all the facts and circum-
stances as shown by the testimony. Dial v. Gambrel, 330
2. Ultra vires executory contracts of corporations, void.-Under the
rule rendering void ultra vires executory contracts of corpor-
ations, a note and mortgage executed by a corporation, as
surety, not being within its charter powers, imposes no en-
1orceable personal obligation upon the corporation, and the
mortgage does not divest the corporate entity of its legal
title to the property it purports to convev. First National
Bank of Gadsden v. Winchester, 168.
1. Jurisdiction of commissioners' court to equalize assessments;
how acquired under act, February 18, 1897.—Under the act of
February 18, 1897, "To amend the revenue laws of the State
of Alabama," any citizen may enter such objection to an
assessment as is requisite to put into operation the powers
of the commissioners' court to increase the valuation of prop-
erty assessed, or the court may, of its own motion, proceed to
increase an assessment. Ex parte Howard-Harrison Iron Co.,
484.
2. Acts to amend revenue law, and tax commission law, in pari
materia.-The act of February 3, 1897, "To provide for the
more efficient assessment and collection of taxes in the State
of Alabama," is to be taken in pari materia with the act of
February 18, 1897, "To amend the revenue laws of the State
of Alabama." Ib. 484.
3. Scope of act of February 3, 1897.-The act of February 3, 1927.
in and of itself, confers complete authorization on the tax
commissioner to submit additional assessments to the com-
missioners' court, and makes it the duty of the commission-
ers, if they are reasonably satisfied that undervaluation
exists, to give notice, "and try and dispose of such assess-
ments as in other cases of undervaluations," and in section
16, by clear implication provides for an appeal by the tax
commissioner in the name of the state. Ib 48h.
4. Term at which raises by tax commissioner to be heard.--Constru-
ing together the acts of February 3, and February 18, 1897,
proceedings by the county commissioners upon assessments
made by the tax commissioners are to be had at the July term
of the court, and may be concluded at the time to which they
were adjourned, as provided in section 11 of act of
February 3. Ib. 484.
5. Ascertainment of taxes paid by plaintiff.-When, in a suit in
electment founded on a tax title, a recovery is defeated on the
ground that the tax sale was invalid for any other reason than
that the taxes were not due, and the court proceeds under
the statute (Code of 1896, §4083) to ascertain the amount of
the taxes for which the lands were liable at the time of the
sale, etc., the court has power to determine the relative value
of the land in suit and other lands on which the taxes were
assessed and paid in gross, and render judgment for pla
for the proportionate share of such taxes due on the lands
in suit. Brummell v. Crook, 670.
6. Rights of sub-purchaser.-The fact that a sun-purchaser of lands
held under tax title, included and paid the amount of the
taxes for which the lands were sold as a part of the purchase
money for the lands sued for, together with other lands, does
not prevent a recovery of such taxes on failure of the tax title
under Code of 1896, §4083. Ib. 60.
7. Relief not granted when not supported by the theory and aver-
ments of a bill.-A bill filed to cancel a tax deed as a cloud on
title, and to recover damages for an alleged conversion of per-
sonal property, cannot be maintained as a bill to ascertain the
taxes due respondent for which he holds the lien of the state
and county under Code of 1896, §4078, and to extinguish said
lien by a set-off for such conversion, in the absence of proper
averments of the existence of the lien, bringing complainant
within the provisions of said section. Parker v. Boutwell &
Son, 297.
8. Tax deed void unless acknowledged and recorded.-No title
passes under a tax deed until it is properly acknowledged and
recorded. (Code, 1886, §§592, 593.) Ib. 297.
9. Acknowledgment. when insufficient.-The acknowledgment to a
tax deed must conform to the statutory form of acknowledg-
ments for conveyances, (Code, 1886, §1802), and when a cer-
tificate of acknowledgment does not contain the statutory
phrase that the grantor was "informed of the contents of the
conveyance," or words of equivalent import, it is fatally
defective. Ib. 297.
1. Concurrent use of streets for quasi public improvements.-An
electric street railway company, having a right to the use of
the streets of a city, equal, but not superior, to the right of a
telephone company to a similar use of the streets, is bound
to exercise reasonable care in constructing its works, and is
liable to the telephone company for damages resulting from
the negligence of the street railway company. Birmingham
Traction Co. v. Sou. Bell Telephone & Telegraph Co., 144.
2. Case at bar.-If an electric street railway company, in erecting
its poles and wires along the streets of a city already occu-
pied by a telephone system, so construct same as to touch and
cross the wires of the telephone company, and so as to cross-
circuit and ground the wires of the latter, and thus prevent
the use of the telephone wires by subscribers, and on com-
plaint being made to the general manager of the electric rail-
TELEPHONE COMPANIES-Continued.
way company he refuses to right the wrong, and threatens
to tear down the wires and poles of the telephone company
unless the latter removes them, such conduct is an unwar-
ranted usurpation, amounting to a trespass, and tending to a
multiplicity of suits, which a court of equity will interfere
by injunction to prevent. Ib. 144.
1. Plea showing contract of hire.—A plea showing that plaintiff and
defendant are tenants in common of a crop under a contract
of hire, (Code of 1896, §2712), is a sufficient answer to a
complaint to enforce a landlord's lien based on the relation
of landlord and tenant. Ragsdale v. Kinney, 454.
2. Lien of tenants in common.-Tenants in common, under the con-
ditions provided in Code of 1896, §2760, have a lien on each
others interest in the crops, and are empowered by statute
(Code of 1896, §2761) to sue their co-tenants and enforce
their respective rights and claims, upon the same grounds
and in like manner, as landlords against their tenants; but
such lien does not extend to advances made to defendant "by
another at his" (plaintiff's) "instance and request, for which
he became legally bound or liable," etc. Ib. 454.
3. Possession of co-tenant.-Possession of one co-tenant is generally
for the benefit of all, and is not deemed adverse unless ac-
companied by circumstances indicating an expulsion or ouster
of the other. Farley v. Nagle, 622.
4. Possession of co-tenant; when forfeits debtor's right of redemp-
tion. When the evidence shows that at the time of the sale,
the lands were in the actual possession of debtor's co-tenant,
that two days after the sale the purchaser made a demand
on the debtor for possession, which was refused, and the co-
tenant continued to hold possession for himself and the
debtor for more than ten days, the debtor's right of redemp
tion is forfeited. Ib. 622.
1. Remarks of counsel.-Overruling a motion for a new trial based
on remarks of counsel on the trial, which were promptly
withdrawn, and the jury instructed not to consider them is
not ground for reversal. Abbott v. City of Mobile, 595.
2. Mistake and fraud on trial, as ground for relief in equity.—An
averment that on a trial at law counsel offered in evidence
a written instrument, claiming it supplied a missing link in
testimony already offered, and relying on such rep-
resentation, the counsel for the opposing party withdrew ob-
jection to the other evidence offered, and not averring fraud-
ulent misrepresentations of the contents of the paper, nor
Jat counsel had no opportunity to inspect it, furnishes no
ground for relief in equity against the judgment recovered
because of fraud, accident or mistake. Hall & Farley v. Griffin,
214.
3. Secondary evidence; when objection made.—An objection to evi-
dence taken by deposition on the ground that it is secondary,
should be made at the earliest opportunity; such an objection
sprung on the trial, when the deposition is being read in evi-
dence, comes too late. Sowell v. Bank of Brewton, 92.
4. Finding and judgment of the court on the evidence reviewed only
by bill of exceptions.-Where the act creating an inferior court
provides that on a trial by the court without a jury,
"either party may by bill of exceptions present for review
TRIAL AND ITS INCIDENTS-Continued.
the conclusion and judgment of the court on the evidence, and
the Supreme Court shall review the same without any pre-
sumption in favor of the court below on the evidence," these
questions cannot be reviewed unless the bill of exceptions
shows what the conclusion and judgment of the court were,
and that exceptions were reserved thereto. Alabama Fruit
Growing & Winery Asso. v. Garner, 70.
5. Objections to evidence not reviewable, when.—Where a cause is
tried by the court without a jury, errors in admission of evi-
dence will not reverse the cause, unless the judgment of the
court on the evidence is presented for review. Ib. 70.
6. Decision of court on facts not reversed unless clearly wrong.
When a case is tried by the court without a jury, upon parol
evidence, the rule which prevails in this State on appeal is,
that all reasonable presumptions are indulged in favor of the
decision of the trial court upon questions of fact, and it will
not be reversed, unless the Supreme Court is clearly satisfied
that it is wrong. First National Bank of Cambridge, Ill., v.
Hall, 64.
TRIAL OF RIGHT OF PROPERTY.
1. Claim suit tried first.-The claim suit may be prosecuted to trial
and judgment without service on the defendant in attach-
ment. Such judgment may be appealed from without a judg-
ment against the defendant. Sloan v. Hudson, 27.
2. Estoppel of claimant.-The claimant is estopped by the execution
of his claim bond from questioning the validity of the levy.
Ib. 27.
3. Denial of plaintiff's debt.-The claimant cannot deny the exist-
ence of the plaintiff's debt as shown by the attachment pro-
ceedings. Ib. 27.
4. Special property will support action.-A party who holds live
stock under a claim bond pending the claim suit has a spe-
cial property therein, which will sustain an action for its
negligent killing, and plaintiff may show the sum paid to
satisfy his obligation to return the property after condemna-
tion, as evidence of damages. L. & N. R. R. Co. v. Brinkerhoff
& Co., 606.
5. Sufficiency of justice's judgment.-An entry on the docket of the
justice: "Judgment entered in favor of the claimant for the
property attached. Cost of suit taxed against the plaintiff,"
is a valid judgment, and will support an appeal. Sloan v.
Hudson, 27.
1. Duties of executrix coupled with other trusts; when equity will
enforce. Where the will of the testator provides that the
estate shall be kept together to be distributed equally among
certain legatees as they become of age, and thereafter the
executrix shall hold, manage and control the property as trus-
tee for the sole and separate use of the legatees during their
natural lives; and, the legatees having arrived at age, the
executrix has filed no inventory of the estate, made no dis-
tribution, taken no steps to make a settlement, nor made any
allowance to the legatees for the use of the property. they may
come into equity to have a distribution. and their shares of
the estate ascertained and set apart, and managed and dis-
posed of according to the provisions of the will. Noble v.
Tate, 399.
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