as quick as possible." This was errror. The fact had no legitimate tendency to prove that Walch exercised due care in the undertaking, nor did it have any bearing by way of showing that his failure to observe the requisite degree of care was the fault of the superintendent, rather than his own, assuming that to be a material inquiry. As said by counsel: "Because an employé is told to do a thing as quick as possible is no excuse for his being guilty of contributory negligence, whereby he is injured, nor does it afford him a cause of action after he is injured." The direction was not a part of the res gestæ of the main transaction, for that, among other reasons, it throws no light upon that transaction; and its whole office and effect in the case was to mislead the jury to find that Walch was not negligent upon a consideration wholly impertinent to the inquiry.

However strong the evidence going to show contributory negligence may have been, there was yet other evidence from which it was open to the jury to infer that the car was in a defective condition; that, but for its defects, the platform would not have overturned; and that Walch had a right to assume that the car was in proper condition. On these findings of fact, it was at least a question for the jury whether Walch was negligent in loading the car in the manner the evidence shows it was being loaded. The court could not declare as matter of law that no ordinarily prudent man would have proceeded as he did. It follows that the affirmative charges requested by defendant were properly refused, since there was neither a lack of evidence tending to show causal negligence on the part of the defendant, nor freedom from conflict in the evidence going to the inquiry of contributory negligence vel non.

If Walch was guilty of negligence in the manner of loading the car, it was, on the evidence, proximately contributory to his injury. There can be no doubt of the correctness of this proposition. Therefore, referring charge 9 to the evidence, as all charges must be referred, it involved no tendency to mislead the jury to find for the defendant on account of negligence which did not proximately contribute to the injury. Abstractly considered, the charge asserts a sound proposition of law. It should have been given.

The counts upon which the trial was had were filed as amendments to the original complaint, after the lapse of a year from the time of intestate's injuries and death; but they are merely differing statements of the cause of action presented by the original counts, and in respect of the statute of limitations they related back to the filing of the original complaint.

For the errors pointed out. the judgment of the circuit court must be reversed. The cause is remanded.

GIBSON v. CLARK et al.

(Supreme Court of Alabama. Feb. 13, 1902.)

DEEDS

INDORSEMENT - CONSTRUCTIVE NOTICE-PLEADING AND PROOF-ESTOPPEL -MORTGAGE OF WIFE'S PROPERTY.

1. Indorsement on back of deed of names of persons as grantor and grantee is no part of deed, so that record of deed is not constructive notice of conveyance between such persons.

2. Under complaint referring to a deed from D. B. B. on pages 352, 353, of Deed Book E, record of deed from A. B. B. on pages 353, 354, is not admissible.

3. A wife, being prohibited from directly or indirectly mortgaging her property for debt of her husband, is not estopped to assert that land is hers, by joining, for the express purpose of relinquishing dower, in mortgage thereof, purporting to be that of her husband.

Appeal from circuit court, Dale county; A. A. Evans, Judge.

Action by John P. Gibson against M. E. Clark and others. Judgment for defendants. Plaintiff appeals. Affirmed.

G. L. Comer and J. E. Z. Riley, for appellant. Sollie & Kirkland, for appellees.

MCCLELLAN, C. J. The indorsement on the back of a deed of the names of the parties to it, so made as to indicate which is grantor and which grantee, as "A. B. to C. D.," is no part of the deed, nor effectual for any purpose; and the filing for record in the probate office of a deed upon which is so indorsed the names of persons as grantor and grantee, or either, who are not parties to the instrument, is not constructive notice of a conveyance between or from or to the persons or person whose names or name are thus written on its back, but is constructive notice of a conveyance between the parties to the paper as they appear in the deed itself. Perhaps such an erroneous indorsement might be used as a false representation as to the parties to the instrument, and thus become evidential of fraud in a proper case; but this is not such a case. And it was therefore immaterial what indorsement of names was on the deed from Blackwell and wife to Margaret E. Clark, and whether the name of the grantee as originally indorsed thereon had been changed from "J. J. Clark" to "Margaret E. Clark." The court did not err in refusing to allow the question propounded by plaintiff to Mrs. Clark on this subject.

It was admitted on the trial by plaintiff that at the time of the conveyance by D. B. Blackwell and wife, Mary, to the defendant Margaret E. Clark, said Blackwell had title to the land. The proposed evidence to the effect that this deed to Mrs. Clark was not recorded in Deed Book E, at the pages stat ed in the certificate of the probate judge written on the back of it, but that instead a Ideed from A. B. Blackwell and his wife, Mary, to J. J. Clark was there recorded, did not tend to show title in J. J. Clark, plaintiff's grantor, nor to impeach the title which

confessedly passed by the deed of D. B. Blackwell and wife to Margaret E. Clark. At most, it went to show the absence of constructive notice of the deed to Mrs. Clark; and, as no question of bona fide purchase without notice is made in the case, the evidence was immaterial in that connection.

Nor was the record of that deed admissible to prove the description of the land as laid in the complaint, because it was not the deed which was made a part of that description, and it was not the record specified in the complaint. The deed referred to in the complaint was from D. B. Blackwell and wife, and it was identified as being on pages 352 and 353 of Record Book E, whereas the record here offered was of a deed from A. B. Blackwell and wife, and it is found on pages 353 and 354 of said book.

The instrument purporting to be a mortgage to Gibson, signed by J. J. Clark and Margaret E. Clark, was not executed as a mortgage or other conveyance of her title by Mrs. Clark; but she signed it for the expressly limited purpose of relinquishing such dower and homestead rights as it might be supposed she had in the land. Recognizing that Mrs. Clark has not in terms conveyed or attempted to convey her legal title in and to the premises, plaintiff seeks to have this mortgage held to operate as a conveyance of such title, by way of an estoppel rested upon the recitation in the instrument that the land belonged to J. J. Clark, etc.; the relinquishment of dower implying that the fee was in the husband, etc. The position of plaintiff involved in this effort is untenable. As Mrs. Clark could not execute a valid mortgage on her land to secure her husband's debt, she cannot be estopped by such, or any, recitals of the paper, in form a mortgage, executed by her husband on her land, and which she signed for the purposes stated above, to now deny the ownership of her husband and assert her own title against the grantee in that instrument. To hold her so estopped would be to give efficacy as a conveyance to a mortgage of a third person covering her land, in which she joined in a way not involving a conveyance by her, because of mere recitals therein, when a mortgage expressly by and from her would be wholly without the semblance of efficacy, and to do by the most patent indirection that which the statute declares shall not be done "directly or indirectly." A conveyance cannot be raised up by estoppel when a direct conveyance in intent and terms would be utterly void for want of legal capacity in the signatory to make it. "The doctrine of estoppel can go no further than to preclude a party from denying that he has done that which he had the power to do." 2 Pars. Cont. p. 800; McIntosh v. Parker, 82 Ala. 238, 3 South. 19; Richardson v. Stephens, 122 Ala. 301, 25 South. 39.

On the undisputed evidence the legal title to the land in suit passed from Blackwell into Mrs. Clark. She was ircapable by con

Code, § 1492, providing no bill can be filed for a divorce for voluntary abandonment, unless complainant has been a resident of the state for three years next preceding, is not affected by section 1485, bestowing jurisdiction to divorce persons for voluntary abandonment for two years next preceding the filing of the bill, or section 1492, providing, where defendant is a nonresident, complainant must have been a bona fide resident of the state for one year next preceding the filing of the bill; the latter section referring to suit for other causes than voluntary abandonment, which, except in case of defendant's nonresidence, allow of immediate filing of bill.

Appeal from chancery court, Elmore county; R. B. Kelly, Chancellor.

Suit by Alexander Davis against Annie Davis. Bill dismissed. Complainant appeals. Affirmed.

Edwin F. Jones, for appellant.

HARALSON, J. Section 1492 of the Code is plain and unambiguous in its provision, that "no bill can be filed for a divorce on the ground of voluntary abandonment, unless the party applying therefor, whether husband or wife, has bona fide been a resident of this state for three years next before the filing of the bill, which must be alleged in the bill and proved." This section relates to the remedy, which is denied, unless the party applying for the divorce brings himself or herself within the terms of the statute. Section 1485, which bestows jurisdiction on courts of chancery to divorce persons for causes enumerated from 1 to 6 inclusive, the third of which is, "for voluntary abandonment from bed and board for two years next. preceding the filing of the bill," relates to causes for divorce and not to the remedy which is prescribed to be pursued in such cases. So, while it requires two years' voluntary abandonment, to constitute one of the causes for divorce, still a party entitled to divorce for voluntary abandonment by the other, cannot file a bill for this cause, unless he or she has been a bona fide resident of this state for three years next before the filing of the bill. This latter section has no reference to the filing of a bill for any other of the enumerated causes, except that for voluntary abandonment. As for all other causes, the bill may be immediately filed on the occurrence of the cause for divorce, except in the single instance of the defendant

being a nonresident of the state, in which case, as is provided by section 1494, "the other party to the marriage [the complainant], must have been a bona fide resident of the state for one year next before the filing of the bill, which must be alleged and proved." There is no inconsistency between this and said section 1492. Each has its independent field of operation without reference to the other. Crossman v. Crossman, 33 Ala. 486; Hendricks v. Hendricks, 72 Ala. 132.

This bill was filed by the husband against the wife for voluntary abandonment, and there is no averment nor proof, as to that, that the complainant has been a bona fide resident of this state for three years next before he filed his bill. There was no error in the decree dismissing the bill for this

reason.

Affirmed.

PATTERSON v. IRVIN.

(Supreme Court of Alabama. Feb. 13, 1902.) TROVER-TITLE-EVIDENCE-APPEAL-OBJECTIONS RAISED BELOW.

1. Plaintiff in trover does not show a title to sustain the action by introducing mortgage from S. reciting title, but without proof of possession by or title in S., defendant being in no wise connected with S.

2. Even if the writing out of the verdict by plaintiff's counsel, and the direction of the judge to a member of the jury to sign it as foreman, was error, it cannot be reviewed on appeal, there having been no objection or exception.

3. Objection for the first time on appeal, that the verdict and judgment are for more than sued for, is too late.

Appeal from circuit court, Coosa county; A. H. Alston, Judge.

Action by W. F. Irvin against A. K. Patterson. Judgment for plaintiff. Defendant appeals. Reversed.

D. H. Riddle, for appellant. P. A. Jackson, for appellee.

DOWDELL, J. Under the plea of not guilty in an action of trover, the burden of proof is on the plaintiff to show either a general or special property in the thing converted to entitle him to a recovery. The only evidence offered by the plaintiff in the present case to show ownership or title to himself in the property in question was a mortgage executed to him by one L. C. Sinclair. No evidence was offered to show that Sinclair ever had possession of the property, nor otherwise proof of ownership or title in Sinclair, unless it can be said that the recital in the mortgage from Sinclair to plaintiff to the following effect: "I hereby transfer, sell, and convey unto the said W. F. Irvin the following property, the title to which I guaranty to be in me," etc.,-is sufficient evidence for the purpose of the trial, without more, to show title in Sinclair at the time of the ex

ecution of the mortgage. The defendant was a stranger to the mortgage put in evidence, and the recital in the mortgage of the mortgagor's ownership of the property described could not, in itself alone, be considered as proof of title in the mortgagor as against the defendant. There was no evidence that in any wise connected the defendant's possession of the property with the mortgagor, Sinclair; and, on the whole evidence taken as true, it cannot be affirmed that the defendant was not in possession of the property as his own when Sinclair made the mortgage to the plaintiff. This evidence fell short of making out such a prima facie case as would authorize a verdict for the plaintiff, and the court erred in giving the affirmative charge requested by the plaintiff.

No objection was made nor exception reserved to the writing out of the verdict by plaintiff's attorney, nor to the direction given by the presiding judge to the jury for one of their number to sign the same as foreman. Consequently there is nothing in this regard upon which to base an assignment of error, if, indeed, there was any error.

No objection was raised in the court below to the excess in amount in the verdict over the amount sued for, and the judgment entered followed the verdict. By timely objection made in the court below, what is now complained of as error could have been easily remedied. The objection made for the first time on appeal in this court by assigning as error the judgment which followed the verdict is not the proper way to present the question.

For the error committed in giving the general affirmative charge requested by the plaintiff, the judgment will be reversed, and the cause remanded.

UNITED STATES SAVINGS & LOAN CO. v. LEFTWICH.

(Supreme Court of Alabama. Feb. 11, 1902.) APPEALS-USELESS APPEAL-BOND AND SE

CURITY FOR COSTS-MORTGAGES-DECREE OF REFERENCE-REGISTER'S REPORT-FAILURE TO OBJECT.

1. On December 12, 1896, a decree was rendered in a foreclosure suit, referring to the register the ascertainment of the amount due. On April 7, 1899, the parties proceeded to have the reference executed, and the next day the register made his report, and, no exception being taken, a decree of sale was entered. Thereafter, and before the sale, complainant gave notice of an appeal, but neither this notice nor the register's certificate stated which of the two decrees was appealed from. The only bond was one purporting to have been filed and approved December 10, 1897, for an appeal from a decree of December 12, 1897, but there was no decree of that date. Held that, the only question sought to be reviewed by the appeal being as to the amount found by the register, if the appeal were considered as being from the decree of December 12, 1996, the court would not consider it, since the decree entered subsequent to the appeal could not be reviewed thereon, but would remain

conclusive of the amount due, and therefore no substantial right would be affected by such consideration.

2. The appeal could not be regarded as being taken from the last decree, since there was neither bond nor security for costs which could be referred to such appeal.

3. No objection having been taken to the register's report as to the amount therein found due, such objection could not be made for the first time in the appellate court.

4. If the first decree should be treated as unappealed, it could not be reviewed on an appeal from the last decree.

Appeal from chancery court, Lauderdale county; Wm. H. Simpson, Chancellor.

Suit to foreclose a mortgage by United States Savings & Loan Company against George A. Leftwich. Decrees of reference and sale, and complainant appeals. Appeal dismissed.

Paul Hodges, for appellant. C. E. Jordan, for appellee.

SHARPE, J. This suit was for the foreclosure of a mortgage, and the main defense was directed to the elimination of certain portions of the mortgage debt claimed to be usurious. On December 12, 1896, a decree was rendered which sustained that defense. and ordered a foreclosure for the amount which should be found due on the mortgage exclusive of what was held to be usurious charges, and referred to the register the ascertainment of such amount. On April 7, 1899, the parties proceeded to have the reference executed, and on the next day the register reported the amount due on the mortgage according to the terms of the decree as $2,123.54. To this report there was no exception, and on the next day the court rendered a decree confirming the report, and directing, in substance, that, unless the sum so ascertained should be paid in 30 days, the mortgaged property should be sold for its payment. Accordingly the lands were advertised for sale, but in October, 1899, before the sale day, a notice of an appeal by complainant was given. Neither the notice of appeal nor the register's certificate states which of the two decrees was appealed from, and the only bond is one purporting to have been filed and approved on December 10, 1897, for an appeal from a decree of December 12, 1897. There was no decree of the latter date, but it may be the bond was intended to apply to that of December 12, 1896. If so, the appeal was so far abandoned as to render a review of that decree useless, for the reason that, whether it be found erroneous or not, the last decree, being subsequent to the appeal, could not be reviewed thereon, and would be left standing as conclusive of the amount due on the mortgage, which is the only question here sought to be raised. Ordinarily an appellate court will not entertain appeals from the results of its action when its decision will not affect any substantial right of a party in the pending matter. Little v. Bowers, 134 U. S.

547, 10 Sup. Ct. 620, 33 L. Ed. 1016; San Mateo County v. Scuthern Pac. R. Co., 116 U. S. 138, 6 Sup. Ct. 317, 29 L. Ed. 589; Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379; Board of Chosen Freeholders of Essex Co. v. Board of Chosen Freeholders of Union Co., 44 N. J. Law. 438; Railway Co. v. Dey, 76 Iowa, 278, 41 N. W. 17.

We do not regard the appeal as taken from the last decree, since there is neither bond nor security for costs which could be referred to such an appeal; but if it could be so regarded an affirmance would follow, for the reason, if for no other, that the register's report which formed its basis was not objected to, and objections such as would be necessary to question its correctness in respect of the sum due complainant cannot be made for the first time in this court, nor could the former final decree, if treated as unappealed, be reviewed on an appeal from the last decree. Alexander v. Bates, 127 Ala. 328, 28 South. 415.

The appeal will therefore be dismissed.

MCDONNELL v. FARROW.

(Supreme Court of Alabama. Feb. 10, 1902.) ADMINISTRATORS-APPOINTMENT-JURISDICTION-PETITION-SPECIAL ADMINISTRATOR.

1. Under Code, § 4273, providing that where the testator, at the time of his death, is an inhabitant of the county, his will must be proved in the probate court thereof, etc., a petition to probate a will in the probate court of M. county properly averred that at the time of her death testatrix was an inhabitant thereof.

2. Under Code, § 62, expressly so providing, a probate court has power to appoint a special administrator pending the contest of a will.

3. Under Code, § 45, providing that, whenever a will has been admitted to probate, the judge of the court in which it was probated may issue letters testamentary, a probate court of one county, on determining that testatrix is an inhabitant thereof, and that the paper propounded for probate is her last will, has the exclusive power to issue letters testamentary; and a subsequent petition, filed in a probate court of another county, averring that testatrix died an inhabitant of that county, and praying the appointment of an administrator there, can give the latter court no jurisdiction to make the appointment.

Appeal from probate court, Marshall county; A. M. Ayres, Judge.

Proceeding to settle the estate of one Fennell, deceased, in which Ada F. McDonnell petitioned for the annulment of the appointment of Thos. L. Farrow as administrator, and for the cancellation and revocation of his letters. Judgment denying the petition, and petitioner appeals. Reversed.

Wm. Richardson and Jno. A. Lusk, for appellant. O. D. Street, for appellee.

MCCLELLAN, C. J. The petition for the probate of the will of Miss Fennell, filed in the probate court of Madison county, alleged that the testatrix at the time of her death

was an inhabitant of said county. This averment was necessary, under the statute, to impart regularity to the proceeding to probate the will in that court. Code, § 4273. The habitat so laid was an issuable fact, the determination of which by that court will be conclusive. The alleged will being contested, the Madison probate court appointed a special administrator pending the contest. This was authorized by the statute. Code, § 62. The probate court of Madison thus assumed jurisdiction of the estate. It had the clear right and power, upon the propounding of the will and the institution of a contest thereof, to proceed to hear and determine that contest, conserving the estate by the appointment of a special administrator ad interim; and upon its determining, as it has the jurisdiction to determine, that the testatrix was an inhabitant of the county, and that the paper propounded for probate is her last will and testament, its further exclusive power and duty is to issue letters testamentary upon said estate. Code, § 45. Pending this status of proceeding and of the estate in the probate court of Madison county, one Elrod, claiming to be a creditor of the estate, filed a petition in the probate court of Marshall county, alleging that at the time of her death Miss Fennell was an inhabitant of that county, and praying the appointment of an administrator of her estate. His petition was granted, and Farrow, the appellee, was appointed and qualified. The present proceeding is a direct, not collateral, assault upon the validity of the appointment of, and grant of letters to, Farrow,—a petition in the Marshall probate court to vacate and annul his appointment and letters. The petition was denied by the Marshall probate court. In our opinion, it should have been granted. The validity of Farrow's appointment depends upon a fact, the habitancy of Miss Fennell in Marshall county,-which is involved in the proceeding in the probate court of Madison county, which that court first acquired jurisdiction to determine for all the purposes of administration, and which it is entirely competent to conclusively determine had no existence at all. Suppose it does so determine; what will be or may be the consequences? There will be two administrations upon the estate,-one in the probate court of Madison, and the other in the probate court of Marshall,-and each court will be in the attitude of denying all jurisdiction in the other and treating the proceedings of the other as void. One may administer the estate as that of an intestate; the other may establish the will, and administer the estate accordingly, etc. These suggested possibilities demonstrate the legal impossibility of such a situation, and the absolute necessity for applying to such a case the rule that the court first assuming jurisdiction of a cause, the subject-matter being within the general competency of such court. must be allowed to pursue and exercise its jurisdiction to the

Beas

exclusion of all co-ordinate tribunals. ley v. Howell, 117 Ala. 499, 22 South. 959. Upon the foregoing considerations, our conclusion is that the probate court erred in denying the petition of Mrs. McDonnell for the annulment of Farrow's appointment as administrator of Miss Fennell's estate, and the cancellation and revocation of the letters of administration issued to him. The judgment of that court will be reversed, and a judgment will be here rendered granting the pray. er of said petition.

Reversed and rendered.

MARTIN et al. v. KELLY.

(Supreme Court of Alabama. Feb. 13, 1902.) LIMITATIONS-PLEADING-RESULTING TRUST.

Averment in bill to enforce resulting trust, arising on act of M., father of complainants, in taking deed to land in his name, that M. and complainants lived together in the quiet enjoyment of the land till a certain time, is not equivalent to an averment of recognition by M. of complainants' rights in the land, so as to avoid the statute of limitations.

Appeal from chancery court, Geneva county; W. L. Parks, Chancellor.

Suit by Sylvester Martin and others Decree for defendagainst M. W. Kelly.

ant. Complainants appeal. Affirmed. Mulkey & Mulkey, for appellants. Espy, Farmer & Espy, for appellee.

DOWDELL, J. On the former appeal in this case (Martin v. Kelly, 113 Ala. 577, 21 South. 337), which appeal was taken from the decree of the chancellor sustaining a motion to dismiss the bill for want of equity, it was then held that, on the averments of the bill, a resulting trust was created in favor of the complainants, and that the decree dismissing the bill for want of equity was erroneous. The question of the statute of limitations and staleness of demand was not presented for consideration on that appeal. It appears from the bill, as well as the facts as now presented, that the resulting trust sought to be enforced arose on the act of Sylvester Martin, the father of the complainants, in taking the deed to the land in question in his own name, which was paid for with money furnished by one Glover, the uncle of complainants, and averred to be intended for their benefit and use, and that this was done in the year 1870, more than 20 years before the filing of the bill; that during all of this time most, if not all, of the complainants were persons sui juris.

On these facts, the statute of limitations, as well as the defense of the staleness of demand, under the authority of Brackin v. Newman (Ala.) 26 South. 3, seems conclusive against complainants' right of action. See, also, in this connection, Robinson v. Pierce, 118 Ala. 273, 24 South, 984, 45 L. R. A. 66, 72 Am. St. Rep. 160. And as to the staleness of the demand, see Nettles v. Net