by defendants to settle the account, whatever It may have been. Cain attaches to his deposition a copy of the account he swears he rendered, showing the balance defendants paid. Why did not defendants, or one of them, attach to their deposition the mortgage account which they say Cain furnished? What became of that account? If it had been the mortgage account that was rendered, as they say it was, and it showed a balance of $432.43, which they admit they paid, and it had been produced, it would have been decisive of this case in their favor, for it would have shown that their recollection of the account rendered, and the amount due on it, was correct, and Cain's incorrect. We are not permitted to doubt, therefore, that the reason they did not attach "the mortgage account" to their depositions is that they were mistaken, and no such account was in their hands, or ever had been. In this connection, too, a fact of very significant importance may be mentioned, that, after paying the $432.43, the amount of their open account, the defendants, when Marks went to see them, and reminded them that the mortgage had been delivered up by mistake, told him, as they depose, that they had paid all they owed him, and were unwilling to admit that they owed him anything, and yet the evidence satisfactorily shows they owed $941.31 without interest, $432.43 of which, only, they had paid. Their memories were not very accurate, therefore.

Another circumstance shows that their memories were uncertain. Denying when approached, as they say, that they owed anything, or had committed any mistake, Kent eventually became convinced they were mistaken as to having paid the balance due on the open account, and agreed to give a new mortgage to secure it, and Barnett does not deny owing the balance of the unsecured account. On the 2d of May, Kent, as has been shown, in the name of Kent & Barnett, wrote to complainants, agreeing to execute a new mortgage, if they would send one down by their young man, with instructions, and apologizing for not having attended to the matter sooner.

Our finding, after a careful consideration, is that the mortgage debt has never been paid; that defendants are mistaken in so supposing; that the mortgage was surrendered by mistake; and that the decree of the court below is free from error. Affirmed.

SUDDETH et al. v. KNIGHT et al.' (Supreme Court of Alabama. June 22, 1893.) DEED-DELIVERY IN ESCROW - VENDOR'S LIEN WHEN ACQUIRED - UNAUTHORIZED SALE OF INFANT'S LAND.

1. Where a conveyance of land is placed in the hands of a third person to be held as an escrow till payment of the purchase money, the incidents of a mortgage attach, and the gran

'Relearing denied February 13, 1894.

tor may proceed in equity to have a lien declared on the land, and a decree for its sale to pay the purchase money.

2. On a sale of land and chattels for a gross sum, without any separation of their values so that the consideration for which the land was sold may be determined, no lien can be enforced on the land for the payment of the debt.

3. A sale of infants' land by their father and natural guardian without an order of court will not be sustained, where it does not appear that the circumstances were such that the court would have ordered a sale on a bill properly filed, and that the proceeds were judiciously expended for the infants' benefit.

Appeal from chancery court, Talladega county; S. K. McSpadden, Chancellor.

Bill by James A. Knight and another against C. J. Suddeth and others to have a lien declared on certain land for the purchase money, and to subject the land to the payment thereof. From a decree for complainants, defendants appeal. Reversed.

Mrs. Douglass owned an undivided half interest in the land in question with her mother, Mrs. Ann E. Wilson, and upon her death her interest descended to certain minor defendants and to Annie L. Hooper as her only heirs, Mrs. Hooper being also a child of Mrs. Douglass. The proof shows that Mrs. Wilson and Mrs. Douglass acquired their title to the land from their aunt, Mrs. Lindsey. Mrs. Douglass died intestate, June 4, 1884, and, as we have stated, the land descended to her children, Mrs. Hooper and the minor defendants, subject, however, to the life estate of the husband of Mrs. Douglass, the defendant E. M. Douglass. Mrs. Douglass' estate was never administered on, and her children have never had guardians appointed. Mrs. Wilson, her son-in-law, E. M. Douglass, and the Douglass children were all living together at the homestead owned by Mrs. Wilson and Mrs. Douglass jointly, at the date of the death of the latter. The bill alleges that the premises became very much out of repair, and the rents and profits of the lands were not sufficient to keep them up, support the whole of the family, and maintain and educate the minors, and hence it became necessary, for the benefit of the property, and to keep the same from waste, and to repair the homestead, to sell a small portion of the land which belonged equally to Mrs. Wilson and the Douglass children; and so E. M. Douglass, the father and natural guardian of the minor defendants, Mrs. Wilson, and said Mrs. Annie L. Hooper and her husband all joined in the execution of a conveyance to the complainants of the four acres of land referred to in the bill, for the consideration of $400,-which, it is alleged, was paid to them in labor, lumber, and materials, and money, but how much of each, and the value of the material, is not stated, but which, it is stated, was a fair price therefor, and the proceeds were wholly used upon said homestead and other joint property of the parties, and the minor defendants got the benefit thereof. It is further averred that complainants, soon after they pur

chased said land, placed thereon a considerable lot of machinery and improvements for the purpose of making brick. Whether the machinery was attached to, and became a part of, the realty or not, is not stated; but they made brick on the land, and on the 18th March, 1890, "sold said machinery, improvements, and land to C. J. Suddeth" for $2,600, and in the transaction took a note for $765, which was placed in the hands of said E. M. Douglass; and complainants duly executed their conveyance to said Suddeth for the property purchased, which was also placed in the hands of said Douglass as an escrow, to be by him delivered to said Suddeth upon the full payment of said note, and not before, "this being done by and with the consent of all the parties interested therein." In his deposition in the case, complainant Thomas V. Knight states that complainants' "sale to said Suddeth included brick mill, boiler and engine, dwelling house, and brick kiln, and some wood." The prayer of the bill was for a decree divesting the interest and title of said minor defendants in and to said land out of them, and investing it in complainants, thereby giving them the full legal title thereto, and for an account ascertaining the balance due by said Suddeth to complainants on said land, and, for the balance found due, that a lien should be declared on said land for the payment thereof, and that it and the machinery "be subjected to the payment of the same." The infant defendants, by their guardian ad litem, demurred to the bill on several grounds, the main one being, in substance, that said E. M. Douglass had no right or power to sell their land without the order and direction of a court of competent jurisdiction to that end, and that the sale of their interest in said land to complainants was, as to them, void, and passed no title. A decree pro confesso was duly entered against defendant Suddeth. The court overruled the demurrers, and, on the trial, rendered a decree in accordance with the prayer of the bill, from which the infant defendants and the defendant Suddeth appeal, assigning, separately, numerous grounds of error.

Bishop & Whitson, for appellants. E. H. Dryer and M. D. Ivey, for appellees.

By

HARALSON, J. 1. The complainants, as against the defendant C. J. Suddeth, reserved the legal title in themselves, as a security for the payment of the purchase money. the terms of the agreement, the conveyance, although executed by complainants preparatory to delivery to defendant on the payment of the purchase money, was never delivered to him, and, by the terms of the contract of sale, was never to be delivered until all the purchase money was paid. It was placed and is in the hands of defendant E. M. Doug lass as an escrow. As to the defendant Suddeth, and as to the right of complainants, the transaction stands as though no con

veyance had ever been signed; and, having retained the title from defendant as a security for the purchase money, all the essential incidents of a mortgage attach, and complainants may, if it were not for other reasons to prevent, proceed in equity to have a lien declared on the land, and a decree for the sale of the same, for the payment of the purchase money. Bankhead v. Owen, 60 Ala. 466, and authorities there cited; Ware v. Curry, 67 Ala. 275; 3 Brick. Dig. p. 617, § 119.

2. But the complainants, as against defendant Suddeth, had no right to maintain this suit. It reasonably appears from the allegations of the bill that the sale consisted of both real and personal property. If there were any doubts about that fact on the allegations of the bill, the proof clearly shows that personal property did enter into the consideration of the purchase. One of the complainants, Thomas V. Knight, examined as a witness in behalf of complainants, testified that "the sale to Suddeth included a brick mill, boiler and engine, dwelling house, brick kiln, and some wood." The principle of a vendor's lien has no application to the sale of personal property. The debt, to come within this principle, must be contracted altogether for real estate, "and no other consideration must, in the slightest degree, enter into it;" and whenever the contract of sale embraces both real and personal property, and no data are furnished by which to ascertain that a separate and definite price was fixed on the land, there is an implied waiver of the vendor's lien. Betts v. Sykes, 82 Ala. 378, 2 South. 648; Alexander v. Hooks, 84 Ala. 605, 4 South. 417; Stringfellow v. Ivie, 73 Ala. 209; Sykes v. Betts, 87 Ala. 542, 6 South. 428. Here, the sale was for land and personal property for a gross sum, without any separation of the values of the land and the personal property sold, so that we may arrive at the consideration for which the land was sold; and therefore no lien can be enforced on the land for the payment of debt.

3. The father of the infant defendants, as their natural guardian, no more than a stranger had authority to sell and convey their land. He was not their legal guardian, nor was he the administrator of the estate of their mother, from whom they inherited this property, and his sale of their land was without the semblance of right. 2 Brick. Dig. p. 293, § 39; Nelson v. Beck, 54 Ala. 329. The bill does not present a case where the defendants, having received and enjoyed the fruits of a judicial sale, are estopped to deny its validity. Robertson v. Bradford, 73 Ala. 117; Iron Co. v. Fullenwider, 87 Ala. 584, 6 South. 197; Jones v. Iron Co., (Ala.) 10 South. 636. The principle is well settled that, where it is manifestly to the interest of an infant, a court of chancery will authorize a sale of its real estate; but, before it will do so, the facts which render a sale necessary must be

alleged and proved, that the chancellor may clearly see that the interest of the infant will thereby be promoted. Ex parte Jewett,

We

16 Ala. 409; Rivers v. Durr, 46 Ala. 418; Crawford v. Cresswell, 55 Ala. 497; Goodman v. Winter, 64 Ala. 411; Thorington v. Thorington, 82 Ala. 489, 1 South. 716. must not be understood as holding that if an infant's lands have been sold without authority, but under such circumstances as a chancery court would, in the first instance, on a bill properly filed, order a sale of its lands, a court of chancery would in no case ratify and confirm such a sale, where it had also been made to appear that the proceeds of the sale had been well and judiciously expended for the infant's benefit. This case does not come within these principles. The decree divesting their title to the land, and investing it in complainants, was erroneous. The alleged multifariousness of the bill, urged in argument, but not made a ground of demurrer, it is unnecessary to consider. The demurrer of the guardian ad litem to the bill should have been sustained. As to the defendants against whom relief is sought, there is no equity in the bill, and it must be reversed and dismissed. Let the appellees pay all the costs of the case in the court below and in this court. Reversed and dismissed.

STERN et al. v. COLLIER, (two cases.) (Supreme Court of Alabama. June 19, 1893.) REVIEW ON APPEAL-ABSENCE OF BILL OF EXCEPTIONS-EFFECT.

The denial of a motion to set aside an order contained in a judgment entry cannot be reviewed on appeal, where there is no bill of exceptions, embodying the motion, the denial thereof, and the exception thereto.

Appeal from Pike county court; John R. Tyson, Judge.

Two actions by C. A. Stern & Co. against T. A. Collier, administrator of the estate of G. C. Collier, deceased. There was judgment for plaintiffs, and, on suggestion of defendant that the estate was insolvent, it was ordered that the judgment be certified to the probate court, and no execution issued. Plaintiffs' motion to set aside the order was overruled, and they appeal. Dismissed.

Chas. Wilkerson and Robt. Williams, for appellants. Hubbard, Wilkerson & Hubbard, for appellee.

MCCLELLAN, J. If the question intended to be presented in these cases was before us, we should probably hold that the circuit court erred in ordering that no execution issue on the judgments, and that they be certified to the probate court on the mere suggestion of defendant that the estate of his intestate "is insolvent." The fact that said estate had been declared insolvent should have been pleaded-not merely suggested

and proved. Code, §§ 2250, 2251; Dolberry v. Trice, 49 Ala. 207; Cunningham v. Lindsay, 77 Ala. 510. But the question is not presented by this record. We find in the transcripts motions to set aside the orders, denials of the motions, and recitations that "movant excepted." None of these matters belong to the record of the court below. They could only be made a part of the record for the purposes of appeals by bills of exceptions. Neither one of the transcripts contains a bill of exceptions. We are not allowed to consider these matters unless they are certified to us in the only way provided by law-incorporated in bills of exceptions, signed by the presiding judge, and transcribed and certified to us by the clerk of the court. No question being reserved, each of these appeals must be dismissed.

CARTWRIGHT v. BAMBERGER et al. (Supreme Court of Alabama. June 22, 1893.) FRAUDULENT ATTACHMENT-ACTION TO SET ASIDE -SUFFICIENCY OF EVIDENCE.

In a suit to set aside an attachment of an insolvent debtor's stock of goods, as fraudu lent, there was evidence that the attaching creditor was the debtor's head clerk, and had claims against him, for money loaned and balance of salary, aggregating $2,900; that he procured transfers to him of claims from a bank, the debtor's mother, and the debtor's prospective brother-inlaw, aggregating $6,380, giving his notes therefor; that on the same day he issued the attachment for the sum of the claims, a secured creditor going on his bond; and that the debtor aided in having the transfer made by his mother after the transferee, on the advice of his father, insisted on attaching. All the direct evidence tended to show that these claims were just, and that the attachment was in good faith, and there was nothing to impeach it but unusual and suspicious circumstances. Defendant bought in the whole stock of such debtor for $8,000, or about 60 cents on the dollar. There was no positive evidence that he had any means except the $2,900, or that he was assisted by any one, though his father was worth about $25,000. Held, that the attachment should not be set aside. Stone, C. J., dissenting.

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

Bill by Bamberger, Bloom & Co. against Herbert Cartwright to set aside, as fraudulent, an attachment by defendant against I. Pinkus & Co., debtors of plaintiffs. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

R. A. McClellan and Kyle & Skeggs, for appellant. Humes & Sheffey, for appellees.

HEAD, J. The demurrers to the bill were determined adversely to the appellant when this cause was before us at a former term. 90 Ala. 405, 8 South. 264. We see no reason to depart from the ruling then made.

Isaac Pinkus, by the name of I. Pinkus & Co., did business as a merchant at Decatur, Ala., from April 7, 1888, to March 3, 1890. Appellant, Cartwright, was employed as chief

clerk in the store from January 1, 1889, to the latter date. On that day,-March 3, 1890,-he (Cartwright,) claiming to be a creditor of Pinkus in the sum of $9,500, sued out an attachment against him for that sum, on the ground that he (Pinkus) had money, property, or effects liable to satisfy his debts. which he fraudulently withheld, and on the same day the attachment was levied by the sheriff on all the goods then in the store. The goods so levied on, taken at cost, invoiced $Two days thereafter, to wit, March 5, 1890, appellees, Bamberger, Bloom & Co., likewise sued out an attachment against Pinkus to recover a debt owing them, of $3,893.83, and caused the same to be at once levied on the same goods. The claims of Herbert Cartwright, which his attachment seeks to enforce, consisted of an alleged claim contracted originally with him by Pinkus, amounting at the date of the attachment without interest, to the sum of $2,959.40, and the claims of three other persons, alleged to have been purchased by Cartwright on the day of the attachment, viz.: Hannah Pinkus, the mother of Isaac, the debtor, amounting to $2,285.71; Abe Spitzer, amounting to $2,700; and the First National Bank of Decatur, amounting to $1,400. On March 5, 1890, complainants (appellees) filed this bill to set aside the appellant's attachment, as collusive and fraudulent. The particular averment upon which the equity of the bill rests, as contained in the sixth paragraph of the amended bill, is that, if Pinkus was indebted to appellant, it was only in a small sum, the amount of which is to complainants unknown; that Pinkus and appellant combined and confederated to procure from the mother of Pinkus and from one Abe Spitzer, the intended brother-in-law of Pinkus, a transfer of the claims held by them, respectively, against said Pinkus, to enable said Cartwright to procure an attachment against the property of Pinkus for the purpose thereby of hindering, delaying, and defrauding the other creditors of Pinkus; and that said alleged claims of the mother and of Spitzer were and are simulated and fraudulent. It is alleged generally, in the original bill, that the claim upon which Cartwright's attachment was issued was simulated. The insolvency of Pinkus, and appellant's knowledge thereof, at the time of the purchase of these claims by Cartwright and issuance of his attachment, are averred. Appellant's answer fully denies all the charges of fraud and collusion; alleges the bona fides of all his asserted claims, as valid, subsisting demands owing by Pinkus; and sets forth the consideration of each debt, when contracted, and how evidenced. He admits he knew Pinkus was indebted, but denies that he was fully informed of the amount of his indebtedness. Thus, we see, the important and controlling inquiry is whether or not appellant's claims were all just and subsisting debts owing by Pinkus at the time the attachment was sued out. We

will examine each of them in the light of the evidence:

1. It is not denied, but conceded, that the claim of the First National Bank of Decatur was and is valid, and was purchased by and transferred to appellant on the day of the attachment.

2. Appellant's own claim: This claim, amounting to $2,909.40, is evidenced as follows: Two promissory notes made by Pinkus to appellant, (the one on May 22, 1889, for $1,000, payable one day after date, and the other on the next day, May 23, 1889, for $1,250, payable January 1, 1890, with interest from date,) and two duebills made by Pinkus to appellant, (one on November 16, 1889, for $250, and the other on January 1, 1890, for $409.40.) Both Pinkus and appellant testify positively, and with emphasis, that the two notes and the duebill for $250 were given to appellant by Pinkus on their respective dates, for the amount of money respectively stated in each, then actually loaned to Pinkus by appellant, and that each of said notes and duebills was actually due, owing, and unpaid to appellant on March 3, 1890, when the attachment was sued out. On the 1st of January, 1889, appellant entered the service of Pinkus, as a clerk, at a salary of $100 per month, and continued therein until he sued out the attachment. Both he and Pinkus testify that on January 1, 1890, they had a settlement on account of salary, and ascertained a balance in appellant's favor for the preceding year's work of $409.40, and that the duebill of that date and amount was given therefor, and was actually due and owing on March 3d following. Pertinent to the validity of these claims is the inquiry, what were appellant's means and ability to make these alleged loans? It is shown that on May 9, 1887,-appellant being then not quite 20 years of age, but having had his disabilities of infancy removed,-M. T. Cartwright, his father and legal guardian, made final settlement of his guardianship in the probate court of Morgan county, Ala., wherein a balance of $2,313.19 was ascertained in appellant's favor, and the same was then paid to him. These facts are shown by a certified copy of the settlement, as well as by the testimony of M. T. Cartwright and appellant. Appellant testifies that this was the money he loaned to Pinkus; that, before loaning it, he kept it, the greater portion of the time, in an iron drawer in his father's safe, to which drawer he had access at all times, and carried a key to it. It was also, he says, for a time, placed in the iron drawer, in connection with some deeds and mortgages of his father, and placed in the bank. He swears that this money was not invested from May, 1887, to May, 1889, and was not at any time deposited in bank to his credit. In the final account of M. T. Cartwright as guardian, he charged himself with an item: "Nov. 30, 1886. To amount

from W. R. Peck, on land, $1,500.00." In his deposition in this cause, he testifies that he sold the land of his ward for $2,200, and reported $1,500 in his account on final settlement, and that his son afterwards collected the balance, of $700; but it nowhere appears when he collected it, or what disposition was made of it. So far as the record informs us, it may have been collected subsequent to March 3, 1890. Speaking of the $2,313.09 paid on the final settlement, M. T. Cartwright further testifies as follows: "I know he [his son] put the money in my safe, and I told him to use his money as he saw proper. He had most of his money in my safe for a year or so. He kept it in an iron drawer in the safe until I carried it to the bank and put it in the vault of the bank; and it stayed there, I don't know how long. I had some notes and mortgages, also, in the drawer, and some cash. * Herbert Cartwright put that money, I believe, in an envelope, and put it in my safe. He made no investment with this money, that I know of. He did not purchase any property, that I know of, with this money. This money probably remained in my safe and private box at the bank four or five months. I went and got the box out of the bank. I wanted to get some papers, and I put the iron box back in my safe. Herbert Cartwright said to me, one day, that Pinkus wanted to borrow some money, and asked me how I thought it would do to loan him some money, I told him that I regarded him good; that he could do as he pleased about it. I don't remember of his using it [the money] until he loaned it to I. Pinkus & Co. He sometimes consulted me in reference to investments in real estate, etc. I believe I did advise him once to invest in bank stock here. He might have said something to me at other times. But I always told him to suit himself about investing his means." About September 12, 1888, appellant "refugeed" from the yellow fever in Decatur to Huntsville, Ala., and took a position as clerk with Campbell & Son, at $50 per month, and continued there until January 1st, when he returned to Decatur, and took the position as clerk with Pinkus at $100 per month. For several years just prior to going to Huntsville, he lived with and clerked for his father, in Decatur. It is not shown what salary, if any, was paid him by his father; but it may be fairly assumed that he at least earned and received from his father, during that time, a living, and all necessary personal expenses. His father was a business man in Decatur, and was worth, during all these transactions and at the time he testified, between $25,000 and $30,000 over all liabilities. Appellant's gross earnings due by salaries from Campbell & Co. and Pinkus from about September 12, 1888, to November 16, 1889, the date of the $250 duebill given to him by Pinkus for alleged borrowed money, amounted to $1,175. Adding to this

his salary for November and December, 1889, ($200,) the gross earnings to January 1, 1890, amounted to $1,375. Of this sum, according to his claim, $409.40 had not been paid, but was still owing him by Pinkus, and was one of the demands for which the attachment was sued out. Deducting that, and he had realized in salaries, in round figures, $965, from which to defray his personal expenses, whatever they may have been, and supplement the fund of $2,313.09 received from his guardian, to the extent of raising the aggregate sum of $2,500 claimed to have been loaned to Pinkus. The evidence does not disclose any other revenue or income received by appellant, except the statement of M. T. Cartwright, above referred to, that his son collected $700 purchase money of land after his final settlement. Complainants drew out of the witness Littlejohn, cashier of the Decatur bank, that appellant "is a young man of excellent business habits and good moral character;" and deeming it not improbable that he lived with his father, and was at slight expense, we think it not unreasonable to believe that he saved enough from his earnings to increase the sum of $2,313, if he kept that on hand, as claimed, to $2,500, the amount claimed to have been loaned to Pinkus.

3. The Spitzer claim. Mr. Spitzer was engaged in the liquor saloon business during the year 1889 in Decatur, Birmingham, Montgomery, and Mobile; owning a one-half interest in the saloons in Decatur, Birmingham, and Montgomery, and the whole interest in Mobile. He was connected with J. M. Friedman, in Decatur, up to the latter part of that year, when he had a settlement with Friedman, and thereafter retained only a small interest in the business. He had previously, in June of that year, made a settlement with Friedman, but the business continued on until the end of the year. During that year he traveled from one of the above-named places to another, with headquarters at Mobile, and visited Decatur often. The business in Decatur was carried on in the name of J. M. Friedman. It is not shown in whose names it was carried on in Birmingham and Montgomery. In each of the several business concerns, (saloons,) there was carried a stock and fixtures worth about $1,500, which were increased as the business justified. When asked the question, he testified that he did not owe anything on these establishments on the 1st of July, 1889, as he bought for cash. He testified further that he kept a bank account in San Antonio, Tex., in 1889, with Morris Friedman, and also a bank account with either the First or Second National Bank of Mobile in 1889. He did not remember which. At a later period in his examination, he stated that he had his bank book of the Mobile bank at Augusta, Ga., and would send it to the commissioner, to be attached to his deposition. A copy of it appears