Suit by Lucy C. Cawthon against Lucius S. Evins, guardian, and others. Decree for complainant. Defendants appeal. Affirmed.

De Graffenreid & Evins and Pitts & Pitts, for appellants. L. E. Jeffries and Danl. Partridge, Jr., for appellee.

DOWDELL, J. The bill, as amended, averred that the bank stock in question was part of the residuum of the estate. The will provides that the residuum shall be equally divided between the complainant and her sister, Florence Vaughan. It was the duty of the executors to make the division as directed by the will. The bill shows that all of the debts of the estate had been paid, and the special legacies mentioned in the will had been discharged. The number of shares of stock owned by the testatrix amounted to 104. The executors made an equal division of the same between the complainant and her sister, Florence, delivering to each 52 shares, and for which new certificates were issued by the bank in their respective names, and proper transfers duly made on the bank's books. Under this state of facts the executors were neither necessary nor proper parties, having no interest whatever in the suit. The 52 shares of stock thus held by the complainant were represented in one certificate. She had sold, or contracted to sell, and it is immaterial which, 5 of said shares to T. J. Rowell. It is plain that, in order to carry out and consummate this sale, it became necessary to the transfer of the legal title to the 5 shares to Rowell and a delivery of the same that a certificate should issue to said Rowell, and a transfer be made upon the books of the bank; and this required a surrender of the certificate representing the 52 shares and an issuance by the bank of other certificates. If the complainant owned the 52 shares in question, she undoubtedly had the right to sell any number of them, and upon the surrender of the certificate to have new certificates issued to her and her vendee, and it was the duty of the bank to issue new certificates upon her demand. She made the demand, and the bank refused. This authorized her to come into equity to compel action on the part of the defendant bank. The bill prays that the bank be required to issue a new certificate to her vendee, Rowell, for the 5 shares sold him, and that a new certificate be issued to her for the remaining 47 shares. The relief, therefore, sought by the bill is affirmative, and such as only could be had in a court of equity. Cook, Stocks & S. (2d Ed.) 391; 23 Am. & Eng. Enc. Law, p. 664; Cushman v. Jewelry Co., 76 N. Y. 365, 32 Am. Rep. 315. The enforcement of this right incidentally involved a construction of the will. As a general rule, the executor is the proper party to ask for a judicial construction of a will, and a mere devisee, in the absence of a trust or some special equity, may not apply for that purpose alone. Man

ufacturing Co. v. Hannon, 93 Ala. 88, 89, 9 South. 539. In the present case the main purpose of the bill was the transfer of the stock, and the construction of the will is drawn into question in the consideration of complainant's right to such transfer and to the issuance of certificates to effectuate the same and consummate the sale. The court having assumed jurisdiction for the purpose of compelling action on the part of the defendant bank, both the right and necessity for a construction of the will arose.

The controversy in this case grows out of that part of the will relating to the residuum of the estate. Item 7 of the will is in the following language: "All the rest and residue of my estate, real, personal, and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease, I give, devise, and bequeath, to be equally divided between my said daughters, Lucy Cawthon and Florence Vaughan." The next item (8) provides that, if either daughter dies without surviving child, the surviving daughter shall "have all the property of every nature, kind, and description that I have in this will given, devised, and bequeathed to the deceased daughter, and not by her expended." From the language employed in these two items as above quoted, it is, we think, manifest that the testatrix intended that the bequest to the complainant should be accompanied with the right of enjoyment of the same, and, if necessary to its enjoyment, the further right and power of expending a part or all of it. And, whether construed apart or in connection with other provisions in the will, it requires no strained construction to reach this conclusion. Unless the words, "and not by her expended," be wholly meaningless, they are susceptible of no other construction than what they necessarily import, and that obviously, if not necessarily, implies the right and power to expend. The right to expend carries with it the right of disposition by sale. The further provision in item 8 to the effect, "It is my purpose to prevent my daughters from disposing of the property bequeathed them by me by will," puts a limitation upon the disposition of the property by the daughter not by her expended in a testamentary way by such daughter, and, whether impliedly a limitation as to any other manner of disposition or not, when construed in connection with other provisions, is clearly not against the right of expending it. The first consideration of the testatrix was to provide for her daughters, and this is manifest throughout her will, and was most natural, and she expresses her desire that they shall enjoy the property, and in which they might be defeated if the construction contended for by the appellants should be given the will, and which is that by the terms of the will the complainant and her sister, Florence Vaughan, have no power of disposition whatever of the property bequeathed. If such contention were

adopted, it might be asked, if the bank stock in question paid no dividends, what enjoyment could the complainant derive from the bequest without the right of disposition under the will? We are clearly of the opinion that by the terms of the will it was the purpose and intention of the testatrix to give to the complainant, Lucy Cawthon, in the enjoyment of the bequest, the right to expend all or any portion of the same, and to this end to make disposition by sale.

What we have said is all that the necessities of the case require, and it follows that the decree of the court below must be affirmed.

GUNN v. HARDY et al.

(Supreme Court of Alabama. Nov. 27, 1901.) HOMESTEAD-EXEMPTION-TORT-FRAUDULENT CONVEYANCES-EJECTMENT.

1. A homestead, being exempt only as against debts or demands arising out of contract, is not exempt against judgment for unlawful use and occupancy of land, not originating in contract.

2. Plaintiff was a creditor at date of H.'s deed to his wife, within Code, § 2156, against fraudulent conveyances, he then having a claim against him for tort, on which he afterwards had judgment.

3. A deed for the expressed consideration of "the sum of $1, and the further consideration that I wish to provide a home for my family," is, as against existing creditors, conclusively voluntary, and void, without regard to intention.

4. Ejectment is the remedy of a purchaser at sheriff's sale of land which the debtor has fraudulently conveyed.

Appeal from circuit court, Shelby county; J. B. Graham, Special Judge.

Action by J. H. Gunn against J. D. Hardy and others. Judgment for defendants. Plaintiff appeals. Reversed.

Phares Coleman and Browne & Leeper, for appellant. Smith & Smith, for appellees.

TYSON, J. Plaintiff claims title to the lot in controversy under a sheriff's deed made to him as purchaser at an execution sale, had on December 18, 1893. This execution was against J. D. Hardy, and was issued out of the chancery court to enforce the collection of $344 recovered by the plaintiff of him for the use and occupation of a certain lot, the title to which and the right of possession was involved in that suit, and the costs thereof amounting to $226.55. The suit in the chancery court was commenced in 1883, and during its pendency, in 1886, Hardy, being the owner of and occupying the lot in controversy as his homestead, executed to his wife the deed under which she claims title to it. This deed is attacked for being fraudulent and void as against the plaintiff, who it is contended was a creditor at the date of its execution, against whose demand there are no exemptions, under the constitution and statutes of this state. cannot be doubted that if the damages recovered in the chancery court, and for which

It

the execution was issued to enforce, were for a tort, that Hardy was not entitled to claim the lot involved in this suit as exempt from levy and sale under the execution. It is only against debts or demands arising out of contract that a homestead exemption is allowed the debtor. Section 2, art. 10, Const.; section 2033, Code; Meredith v. Holmes, 68 Ala. 190; Williams v. Bowden, 69 Ala. 433; McLaren v. Anderson, 81 Ala. 106, 8 South. 188; Vincent v. State, 74 Ala. 274; Wright v. Jones, 103 Ala. 539, 15 South. 852.

For the purpose of determining the nature and character of the demand, whether in tort or contract, when not disclosed in the decree, it is competent to look at all the pleadings, orders, etc., in the cause. Northern v. Hanners, 121 Ala. 590, 25 South. 817, 77 Am. St. Rep. 74, and authorities therein cited. The record in that cause discloses that Hardy's liability, enforced by the execution, resulting in the purchase by the plaintiff of the lot in controversy, arose, not out of any contract between him and the plaintiff, but out of his tortious possession of the lot involved in that suit. No contractual relations whatever existed between them with reference to the title to that lot or the right to the possession of it by Hardy. He went into the possession of it, not by the consent of Gunn, express or implied. It was only after Hardy recovered it in an action of ejectment, and a writ of possession issued against Gunn, that he surrendered the possession of it, and Hardy took possession. It was for the unlawful use and occupancy by Hardy that Gunn recovered the damages in the chancery case; and, as against that recovery, the lot in dispute was not exempt to Hardy as a homestead; and as against that demand, if the plaintiff is a creditor, within the meaning of the statute of frauds, and entitled to its protection against fraudulent conveyances, the deed to Mrs. Hardy is void.

Was the plaintiff a creditor, at the date of the deed to Mrs. Hardy, within the meaning of section 2156 of the Code? As the decree adjudging Hardy liable for damages is only evidence of the existence of his liability at the date of its rendition, and as Mrs. Hardy's deed antedates the rendition of the decree, we are authorized to look to the record beyond the decree for the purpose of ascertaining, not only the cause of action, but when the right or claim arose upon which the decree is based. Yeend v. Weeks, 104 Ala. 340, 16 South. 165, 53 Am. St. Rep. 50. Consulting the record, we find that, at the date of the deed to Mrs. Hardy, Hardy was liable to the complainant in that suit. plaintiff in this one, for use and occupation for nearly three years. In other words, had the decree been rendered just prior to the execution of the deed, Hardy's liability would have been nearly one-half of the amount recovered of him. As the measure of damages recoverable was the value of the lot, and as this is shown to have been $4 per month,

it requires but a simple mathematical calculation to ascertain the extent of Hardy's liability when the deed was made.

Recurring to the question propounded above, while it has not been decided in this state, there are many decisions in other states directly on the point, under statutes substantially the same as ours. These cases can be found in a note of Mr. Freeman's in 52 Am. Dec. 114. That author, after examining them, says: "Claims for damages arising from torts are almost universally regarded as within the protection of the statutes against fraudulent conveyances. Persons having such claims are treated as creditors, within the meaning of the statutes."

Having shown that plaintiff's cause of action against his debtor, Hardy, the grantor in the deed under which Mrs. Hardy claims title to the lot in controversy, arose some years before that deed was executed, and that he was a creditor of Hardy at and prior to its execution, the case is one of an existing creditor attacking the deed as fraudulent. The consideration expressed upon the face of this deed is in these words: "The sum of one dollar and the further consideration that I wish to provide a home for my family." In Houston v. Blackman, 66 Ala. 564, 41 Am. Rep. 756, this court held that a deed expressing substantially the same consideration as this one was voluntary as against creditors, and that parol evidence was inadmissible to show that it was founded on a valuable consideration. It was there said: "There can be no doubt that a deed founded on and expressing a merely nominal consideration must be deemed voluntary as to creditors." To the same effect is Murphy v. Bank, 16 Ala. 90. where the consideration expressed was in the deed "for and in consideration of his [the grantor's] anxiety to provide for his said wife a competent support, in case of any future misfortune and embarrassment, and in and for the further consideration of one dollar in hand paid," etc. The deed being a voluntary conveyance, it is "void per se as to existing creditors, without any regard to the intention of the parties, or to the circumstances of the grantor, or the amount of his indebtedness, or to the kind, value, or extent of the property conveyed." Beall v. Lehman-Durr Co., 110 Ala. 446, 18 South. 230; Sides v. Scharff, 93 Ala. 106, 9 South. 228. It has been too frequently decided by this court to be now a matter of serious doubt that a purchaser of land at sheriff's sale under execution against a debtor, who has made a fraudulent conveyance of the legal title to his vendee, may maintain an action of ejectment for its recovery. Indeed, it is the only remedy he has. Smith's Ex'r v. Cockrell, 66 Ala. 64; Grigg v. Swindal, 67 Ala. 187; Pettus v. Glover, 68 Ala. 417; Betts v. Nichols, 84 Ala. 278. 4 South. 195; Teague v. Martin, 87 Ala. 500, 6 South. 362, 13 Am. St. Rep. 63; Goodbar v. Daniel, 88 Ala. 583, 7 South. 254, 16 Am. St. Rep. 76.

An employé whose duties take him up and down a stairway many times a day, and who is injured, while descending the steps, by his foot coming in contact with a timber which for 10 days had rested on a step, as part of a scaffolding, is precluded by contributory negli gence from recovering therefor.

Appeal from Tuscaloosa county court; J. J. Mayfield, Judge.

Action by L. L. Herren against the Tuscaloosa Waterworks Company. Judgment for plaintiff. Defendant appeals. Reversed.

Fitts & Fitts, for appellant. Robison Brown and Henry A. Jones, for appellee.

SHARPE, J. Plaintiff was employed by defendant to attend and operate machinery situated in two rooms of its pumping house. One of the rooms, containing the engine, heater, etc., was below the other, and was connected by a stairway with the room above. A superintendent of the plant, in directing the making of repairs in the lower room, caused a scaffold to be made which was supported in part by a scantling or piece of timber placed laterally with one end rested on a step of the stairs high above the basement floor, and so as to leave room for one to pass at its end along the stairs. In that position the timber had lain for about 10 days, and of this plaintiff had knowledge, he having passed up and down the stairway many times each of those days in attending to his duties. On the evening of the happening which gave rise to the suit, he had gone over the stairs, and later started to visit the room below, which was deep, and lighted only by a dimly burning lantern. After descending four or five steps, his foot came in contact with the timber, and from that cause he fell to the basement floor, and was badly injured. These are the controlling facts as condensed from the plaintiff's own testimony, and he was the only witness examined on the trial except as to the extent of his injury and damages. Plaintiff was thus left to tell his own story, and has done so with apparent honesty, but the case he makes does not warrant his recovery.

If it be assumed that defendant was negligent in having the timber on the stair, yet the doctrine of contributory negligence works the plaintiff's defeat. The law classes as negligent, not only conscious imprudence, but also forgetfulness of, and inattention to, dangers which are both known and understood. Railroad Co. v. Hall, 87 Ala. 708, 6 South.

1 Rehearing denied February 5, 1902

277, 4 L. R. A. 710, 13 Am. St. Rep. 84; Wilson v. Railroad Co., 85 Ala. 269, 4 South. 701; Railroad Co. v. Banks, 104 Ala. 508, 16 South. 547.

It cannot be doubted that the plaintiff knew the timber's position, and understood whatever danger attended a misstep upon or against it. So far as the evidence shows, he had no reason to believe it had been removed before the accident. Such danger as it created was obvious, requiring no special experience or admonition to cause it to be fully appreciated by a person of ordinary understanding, and, by exercising the caution which his knowledge should have aroused, the plaintiff could have avoided the danger as he had theretofore done. His unexplained failure to shun the timber must be set down to that want of ordinary care which is the legal equivalent of negligence, and the law is that where negligence of both parties has co-operated proximately to produce an injury the courts will not attempt to decide whose was the greater fault. Frazer v. Railroad Co., 81 Ala. 185, 1 South. 85, 60 Am. Rep. 145; Railroad Co. v. Richie, 99 Ala. 346, 12 South. 612; Railway Co. v. Calderwood, 89 Ala. 247, 7 South. 360, 18 Am. St. Rep. 105. Where the facts bearing on negligence are undisputed, and are not susceptible of adverse inferences, the question of negligence vel non, whether relating to conduct of the plaintiff or defendant, is properly one for the court. Railway Co. v. Bradford, 86 Ala. 574, 6 South. 90; Wilson v. Railroad Co., and Railroad Co. v. Banks, supra.

The refusal to charge the jury affirmatively in favor of defendant, according to its request, was error for which the judgment must be reversed. This view of the case makes it appear unnecessary to pass more specifically on the several assignments of er

ror.

Reversed and remanded

SPOTSWOOD v. BENTLEY. (Supreme Court of Alabama. Feb. 6, 1902.) ASSUMPSIT-SUIT AGAINST ADMINISTRATOR.

A complaint, in an action against an administrator in his representative capacity for money had and received in such capacity for plaintiff's use, does not authorize a recovery against the administrator, either in his representative or individual capacity.

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by Martha A. Spotswood against A. J. Bentley, as administrator of the estate of Bartley Harris, deceased. Judgment for defendant, and plaintiff appeals. Affirmed.

Humes, Sheffey & Speake, for appellant. R. W. Walker, for appellee.

DOWDELL, J. The suit was brought against the defendant, appellee here, in his representative capacity as administrator of

the estate of Bartley Harris, deceased, yet the complaint shows no cause of action against the defendant in such representative capacity. If the money claimed by the plaintiff as had and received by the defendant for plaintiff's use and benefit constituted assets of the estate which came into the defendant's hands as administrator, then the complaint wholly fails to show any cause of action in the plaintiff. Lowery v. Daniel, 98 Ala. 451, 13 South. 527. If, on the other hand, the money claimed as had and received by the defendant for plaintiff's use and benefit was not assets of the estate represented by the defendant, then certainly he could not be made liable in his representative capacity. Daily's Adm'r v. Daily, 66 Ala. 266.

We find no error in the record, and the judgment of the circuit court will be affirmed.

STEPHENSON v. HARRIS.1

(Supreme Court of Alabama. Dec. 20, 1901.) REFORMATION-MORTGAGE DESCRIPTION

FORECLOSURE.

A bill by the purchaser at foreclosure will not lie to correct a misdescription of land in the mortgage, after confirmation of sale, the misdescription appearing in the foreclosure bill, in the decree ordering a sale, in the advertisement of sale by the register, in his report to the court and his deed to the purchaser, and in the confirmation of the sale by the court.

Appeal from chancery court, Morgan county.

Bill by C. C. Harris against R. L. Stephenson to reform the description of land in a mortgage. From an order overruling a demurrer to the bill, defendant appeals. Reversed.

E. W. Godbey, for appellant. Harris & Eyster, Wm. L. Martin, and Francis G. Cuffey, for appellee.

HARALSON, J. The whole difficulty with the complainant's title to the land in question, and to his enjoyment of the possession of the same, is, as appears, in the alleged misdescription of the same in the mortgage under which it was sold by the decree of foreclosure, at the instance of the cross complainants, in the chancery court in the suit of defendant Stephenson against Allison, and C. C. Harris,-the latter being the present complainant,-said description appearing, not only in the said foreclosure bill, but in the decree therein, ordering a sale of the property; in the advertisement of sale by the register, in his report of the same to the court and his deed to the purchaser, the complainant in this bill,-and in the confirmation of said sale by the court. After all this, the defendant objects. by way of demurrer, that the relief sought cannot be granted in a bill of this character.

1 Rehearing denied February 11, 1902.

No principle is better settled here, and generally, than that courts of equity have jurisdiction to reform a written instrument, on account of a mistake of fact occurring in it, so as to conform it to the intention of the parties to it, even though the defect is such that it may be aided by parol, and thereby made available as a defense to an action at law; and so long as the party holding under the written instrument is dependent on parol testimony, and is exposed to the hazard of losing the benefit of his written muniment by loss of such parol evidence, he is entitled to the aid of a court of equity to perfect the written muniment. Greene v. Dickson, 119 Ala. 346, 24 South. 422, 72 Am. St. Rep. 920. Judge Story says: "One of the most common classes of cases, in which relief is sought in equity, on account of a mistake of facts, is that of written instruments, either executory or executed. Sometimes by mistake, the written instrument contains less than the parties intended; sometimes it contains more; and sometimes it simply varies from their intent by expressing something different in substance from the truth of that intent. In all such cases if the mistake is clearly made out by proof entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties." 1 Story, Eq. Jur. § 152; 2 Pom. Eq. Jur. 88 852, 859.

Another principle equally as well settled and understood is, that after a decree has been entered and the term of the court at which it was entered has expired, it cannot be vacated or amended on motion or petition for the purpose of correcting an alleged error which involves the merits of the case. 5 Enc. Pl. & Prac. 1049.

In Owen v. Bankhead, 82 Ala. 399, 3 South. 97, it was said: "A final decree had been rendered in this case, and under it the register had made sale of the lands the bill sought to have sold. At a subsequent term, application was made for leave to amend the bill. The application came too late. The final decree, and adjournment of the court, placed the subject of the decree beyond the power of the chancellor to alter anything therein decided. Ex parte Cresswell, 60 Ala. 378; Cochran v. Miller, 74 Ala. 60; Marshall v. McPhillips, 79 Ala. 145." McQueen v. Whetstone, 127 Ala. 417, 30 South. 548; Dial v. Gambrel, 126 Ala. 151, 28 South. 1.

In this case, there was no action to correct the alleged mistake in the mortgage before it was foreclosed, nor was there any correction of it, sought in the cross bill for its foreclosure.

The Indiana court has had the question presented before it more than once. In Rogers v. Abbott, 37 Ind. 138, the court said: "Such mistakes in the description of real estate, between private persons, in bonds, mortgages, deeds, etc., are freely corrected

by the courts. But when the sale is judicial, difficulties arise which at once cause a court to hesitate, seek for reasons and search for precedents. If the mis

take was in the deed only, perhaps it might be corrected in this way. But if

we should correct the deed, and attempt to vest in the plaintiff the title to the tract of land which he claims, we should give him land which was not ordered by the court to be sold, nor advertised by the sheriff, nor sold by him, nor purchased by the plaintiff. The difficulty seems to us insurmountable, especially as to a correction of the description of sale given by the sheriff." Schwickerath v. Cooksey, 53 Mo. 75.

In Miller v. Kolb, 47 Ind. 220, it was held that when a mortgage misdescribes the property intended to be mortgaged, the mistake may be corrected by a proper proceeding before foreclosure, or in an action to foreclose; but when the mistake has been carried into a decree of foreclosure, the execution, advertisement, and sheriff's deed, the purchaser at the sheriff's sale cannot maintain an action to correct the mortgage and decree, the subsequent proceedings and the deed. So, in Armstrong v. Short, 95 Ind. 326, it was said: "That where a mortgage has been foreclosed and the property sold, there can be no reformation of the sheriff's deed in the way of correcting an erroneous description." Keepfer v. Force, 86 Ind. 81.

When there is a decree of foreclosure, the mortgage becomes merged in it, and ceases to exist as a legal security for the debt, so long as the decree of foreclosure stands unannulled. It follows, that a decree of foreclosure, if valid, is a complete extinction of the mortgage; and if invalid, it must be so for all purposes. Duval's Heirs v. McLoskey, 1 Ala. 728.

We have been referred by complainant's counsel to the case of Greeley v. De Cottes, 24 Fla. 475, 5 South. 239, and to Greene v. Dickson, 119 Ala. 346, 24 South, 422, 72 Am. St. Rep. 920, as sustaining his bill. The Florida case, it must be admitted, does, but the conclusion seems, from the authorities cited, to be based on the admitted jurisdiction of the chancery court to correct mistakes in written instruments. We must decline to follow it. In the case in 119 Ala., 24 South., and in 72 Am. St. Rep., it seems from the opinion that a deed of trust was foreclosed, as we take it, under the power in the deed, and the complainant purchased the land and received a deed from the trustee. The county and state where the lands described lay, were not stated in the deed of trust, and another misdescription was averred. No judicial decree for the sale, appears to have been made, and the power of the court to correct a decree, or a mortgage which had been judicially foreclosed was not considered. The gravamen of the decision is, that "courts of equity have jurisdiction to reform a written instrument even