victed under section 3794 of Code of 1886, which declares: "Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has been stolen, and not having the intent to restore it to the owner, must, on conviction, be punished as if he had stolen it." Under the statute the intent not to restore the property to the owner is an essential part of the description of the offense, which must be proved in order to convict; and whatever it is necessary to prove must be alleged with certainty and precision. McCord v. State, supra. The indictment omits to set forth the particular intent contained in the statute, but charges in the several counts that the defendant feloniously bought, received, concealed, or aided in concealing the property, knowing it to have been stolen. When the words of the statute are not strictly pursued, words conveying the same meaning, having as full signification, must be employed. The mere act of buying, receiving, or concealing property, knowing it to have been stolen, is not of itself, the offense denounced by the statute. It must be done with the intent not to restore the property to the owner. Without such intent the act cannot be felonious. The term "feloniously," as employed in the indictment, is merely the statement of the legal result of the facts, including the intent, prescribed by the statute. In such case the statement of a legal result is insufficient. Under a statute which contained the following description of the offense: "Who shall buy, conceal, or receive any stolen goods and chattels, knowing the same to be stolen, with intent to defraud the owner, "-it was held that an indictment which omitted to state that the defendant received the goods, with the intent to defraud the owner, was defective, though it alleged he had feloni. ously received them, knowing them to be stolen. Pelts v. State, 3 Blackf. 28. The use of the term "feloniously" does not supply the omission to allege "not having the intent to restore the property to the owner." U. S. v. Forrest, 3 Cranch, C. C. 56; State v. Comfort, 5 Mo. 357. Reversed and remanded.

AYCOCK et al. v. ADLER.

(Supreme Court of Alabama. April 16, 1889.)

EXECUTION-SALE-REDEMPTION.

Where a debtor whose land has been sold on execution surrenders possession to the purchaser, and afterwards offers to redeem, in compliance with Code Ala. § 1879-1881, the purchaser at the execution sale, or those claiming under him, cannot interpose, on a bill to redeem, title derived after the sale from any other source.

Appeal from chancery court, Etowah county; S. K. MCSPADDEN, Chancellor. Jas. Aiken, Dortch & Martin, and Geo. D. Motley, for appellants. Amos E. Goodhue, for appellee.

CLOPTON, J. Appellee seeks by the bill to enforce the statutory right of redemption. The land which is sought to be redeemed was sold under an execution against the appellee, and was purchased by Amos E. Goodhue. The bill alleges, and the proof shows, a tender of the purchase money, with 10 per cent. per annum thereon, and an offer to pay all lawful charges. Goodhue conveyed the land by quitclaim deed to appellant Aycock, who conveyed an undivided half interest to his co-appellant. Complainant was in possession of the land at the time of the execution sale, and claimed title by purchase at a sale previously made under a power contained in a mortgage executed by Mrs. Wharton to Dean, Whaley & Co. After the execution of the mortgage Mrs. Wharton sold and conveyed the land to Jesse Looney and others, trustees, from whom defendants deduce title other than the title acquired from the purchaser at the sheriff's sale. Defendants refused to accept the tender of complainant, and denied his right to redeem, on the alleged ground that the mort

gage sale under which complainant derived title was void by reason of irregularities and non-compliance with the conditions of the mortgage. The statute confers on complainant the right to redeem the land within 2 years after the execution sale, if possession was delivered within 10 days thereafter on demand of the purchaser, by paying or tendering the purchase money, with 10 per cent. per annum thereon, and all other lawful charges. Code 1886, §§ 1879-1881. The agreed statement of facts shows that complainant had rented the land to a tenant, who left it about a month prior to the sheriff's sale, and that within 10 days after the sale the purchaser went into possession without having made demand, and without objection, and remained in possession until he conveyed to Aycock, who has been in possession ever since. The tender and surrender of possession by complainant were sufficient. A compliance or tender of compliance with the statutory requirements has the effect to reinvest the debtor with the title which he possessed at the time of the sale, and the purchaser, if a conveyance has been made to him, is required to reconvey to the debtor such title as he acquired by the purchase. Any other right or title which the purchaser, or those claiming under him, may have acquired after the sale, is not affected by the redemption, and he cannot set up such title in bar of a bill to redeem. After the purpose of the statute has been effectuated by restoring the debtor to the right and possession he had at the time of the sale, the person from whom the debtor redeems may assert any superior title which he may have by any appropriate remedy. The object of the cross-bill, filed by defendants, is to call upon the court to determine the validity of the title of the execution debtor. This the court will not do, on a bill to redeem, such inquiry being foreign to the issues. The essential facts existing-a sale under execution, an entry into possession by the purchaser, and an offer to redeem in compliance with the statute-entitle the complainant to the relief he seeks, without regard to any other title the defendants may have subsequently acquired from any other source. Posey v. Pressley, 60 Ala. 243; Hanna v. Steele, 84 Ala. 305, 4 South. Rep. 271.

In the bill complainant tenders and offers to pay the purchase money, with 10 per cent. per annum thereon, and all lawful charges, and avers that he is ready, able, and willing to pay, and submits himself to the jurisdiction of the court. Under such offer and submission the court may compel him to pay as the condition of granting the relief. The bill sufficiently offers to do equity. Rogers v. Torbut, 58 Ala. 523.

Affirmed.

CALLEN . SCHUESSLER.

(Supreme Court of Alabama. April 18, 1889.)

PLEADING AND PROOF.

In a suit to subject land to the payment of a debt of defendant's grantor, where the answer alleges that defendant purchased the land for a certain sum, which she paid to such grantor in cash, a claim that the land at the time of defendant's pur chase was incumbered for purchase money owing by the grantor, and that defendant paid the same as part of the price agreed to be paid by her, and is entitled to be reimbursed therefor, cannot be considered.

Appeal from chancery court, Chilton county; S. K. MCSPADDEN, Judge. Bill by Moses Simmons against James A. Dudley, late tax collector, the sureties on his official bond, and several persons who had bought property from him, to enforce a statutory lien on property which belonged or had belonged to Dudley, and to subject it and property of the sureties to the payment of a judgment which the county had recovered against them for Dudley's default, and which had been paid by complainant, one of the sureties on the bond, who then took an assignment of it to himself. Complainant died

pending suit, and the cause was revived in the name of Adam Schuessler, as his administrator. Among other property the bill sought to subject to sale certain lots which Dudley had conveyed to Mary F. Callen, who with her husband was made a defendant. Mrs. Callen appeals.

Jones & Falkner and Watts & Son, for appellant. ton, for appellee.

William S. Thoring

STONE, C. J. It is contended for Mrs. Callen that when she purchased the lots from Dudley there was a balance of $75 unpaid purchase money, an incumbrance on the lots before she acquired the title, but which she paid off as part of the purchase price she had agreed to pay for the lots. Dudley proves this to have been the case. The claim is that to this extent the lots never were Dudley's, and that, consequently, she is entitled to be reimbursed the $75 out of the proceeds of the lots on which the incumbrance rested. If the pleadings were so framed as to raise this question, it may be that her claim would be well founded.

The state of the pleadings will not permit us to consider this question. In her answer Mrs. Callen "avers that on the 15th day of January, 1876, the said Mary F. Callen purchased the said above-described property from the said James A. Dudley for the sum of one thousand dollars, which said sum was paid in cash to said James A. Dudley by the said Mary F. Callen with funds belonging to her statutory separate estate." The answer not only fails to aver that Mrs. Callen herself paid off this incumbrance, but avers the contrary, by claiming that she paid the entire sum to Dudley. An averment or admission in pleading cannot be the subject of contradictory proof by the party making the averment or admission. McGehee v. Lehman, 65 Ala. 316; 3 Brick. Dig. p. 402, § 571. But this feature of the case, being defensive, in the nature of confession and avoidance, should have been claimed in the answer to authorize proof to be made of it. All other questions sought to be raised by the arguments of counsel were decided adversely to appellant when this case was formerly before us. We have not changed our views expressed on that appeal, but adhere to them. Schuessler v. Dudley, 80 Ala. 547, 2 South. Rep. 526; County of Dallas v. Timberlake, 54 Ala. 403; Knighton v. Curry, 62 Ala. 404. Affirmed.

HILL . NELMS et al.

(Supreme Court of Alabama. April 18, 1889.)

1. ALTERATION OF INSTRUMENTS-PLEADING-BURDEN OF PROOF.

In detinue based on a chattel mortgage executed by defendant to plaintiff, a plea that an alteration was made in the amount of the mortgage debt as stated in the instrument by increasing it to a certain amount, and by adding the name of a mortgagor, after the instrument was executed, without defendant's knowledge or consent, is good. Such plea implies that the alteration was after delivery, and while in plaintiff's custody. It need not allege that the alteration was made by plaintiff, or with his knowledge or consent, but the burden is on him to explain the altera

tion.1

2. INFANCY-CHATTEL MORTGAGES.

Where one executes a chattel mortgage while an infant, mere acquiescence or failure to disaffirm by some positive act of repudiation, after attaining majority, is not a legal ratification.

'On the general subject of the unauthorized alteration of written instruments, see Evans v. Lawton, 34 Fed. Rep. 233, and note; Burrows v. Klunk, (Md.) 17 Atl. Rep. 378, and cases cited.

2 Respecting ratification and disaffirmance of the contracts of an infant after he attains majority, see Wells v. Seixas, 24 Fed. Rep. 82, and note; Ferguson v. Railway Co., (Tex.) 11 S. W. Rep. 347, and note; Leacox v. Griffith, (Iowa,) 40 N. W. Rep. 109, and note.

8. CHATTEL MORTGAGES-CONSTRUCTION.

Where a note and chattel mortgage to secure it were given for supplies obtained for the declared purpose of making a crop, and the mortgage provided that if the mortgagees should advance additional supplies the mortgage should stand as security for them, as fully as if included in the note, the mortgage includes advances or supplies for planting, cultivating, and gathering the crop, though made after it became due.

4. SAME.

A verbal agreement by one of several chattel mortgagors that the mortgage shall include other debts, is good as to him, as a verbal mortgage of his property, the agreement having been made before Code Ala. 1886, § 1731, prohibiting verbal mortgages, was in force.

5. REPLEVIN-BONDS-ESTOPPEL.

A forthcoming bond, reciting the sheriff's seizure of certain property under the writ of detinue in the case, and conditioned for the delivery of it with other property if the suit fails, estops plaintiff from showing that such property was not so seized, or that it did not go into his possession under the bond.

Appeal from circuit court, Lee county; JESSE M. CARMICHAEL, Judge. Action by Kennon & Hill, partners, (afterwards prosecuted in the name of S. H. Hill, surviving partner,) against C. W. Nelms and E. G. Nelms, to recover three horses, two mules, and a two-horse wagon, claimed under a chattel mortgage. Plaintiffs gave a statutory bond on the commencement of the suit, requiring the sheriff to take the property, unless defendants gave bond, and afterwards executed a forthcoming bond, which recited that the defendants in the suit "have failed and neglected for the space of five days from the taking of said property in possession by said sheriff, to give bond and take possession of said property, as authorized by law," and was conditioned that defendants should have the property forthcoming within 30 days after judgment, if they failed in the suit. Plaintiff appeals.

W. J. Samford and J. M. Chilton, for appellant. Geo. P, Harrison, Ji., for appellees.

SOMERVILLE, J. The action is one of detinue for certain specific property, the title of the plaintiffs resting on a mortgage purporting to be executed by the appellees, who were defendants in the lower court. There is evidence tending to show that a material alteration was made in the amount of the mortgage debt, by changing it from $900 to $1,000, and that the name of E. G. Nelms was added as one of the mortgagors, after the execution of the patper, and without the consent or knowledge of C. W. Nelms, also a mortga gor. The second plea of the defendant E. G. Nelms substantially averred these facts, and the court held it sufficient on demurrer.

1. It was not necessary for the plea to aver in express words that these alterations were made after delivery of the mortgage. The averment that it was done after the instrument was executed, was sufficient. This implies that it was after delivery. The execution of a conveyance ordinarily includes its signing, sealing, and delivery, or the doing of every formal thing necessary to complete or carry it into effect. 1 Rap. & L. Law Dict. 478, "Executed." 2. Nor was it necessary to aver in the plea that the alteration was made by the plaintiffs, or with their knowledge or consent. It is sufficient to state that the change was made after the execution of the paper, and without the knowledge or consent of the defendants, which imports that it was done after delivery, and consequently while in the custody and possession of the plaintiffs, who were the grantees in the instrument. The alteration appeared on the face of the paper, and was obviously so material and beneficial to the mortgagees as to be suspicious in its nature. This fact, according to the better rule, cast on the plaintiffs as holders the burden of removing the suspicion by showing that it was made by a stranger, without their knowledge or leave, or to otherwise satisfactorily explain the alteration. If made before the completion of the instrument, or with the consent of the party to be charged under

it, this would be a sufficient explanation. The force of the plea is to deny prima facie the right of the plaintiffs to claim any legal right under the altered mortgage without first so explaining the suspicious fact of alteration as to rebut the implication of its having been fraudulently made. Steph. Dig. Ev. (Reynolds) pp. 119, 120, art. 89; 1 Greenl. Ev. (14th Ed.) § 564, note 1; 3 Rand. Com. Paper, § 1784; 1 Amer. & Eng. Cyclop. Law, 512, 513; Barclift v. Treece, 77 Ala. 528. The demurrer to this plea was properly overruled.

3. Where an infant, during his minority, has made a deed or mortgage, his mere failure to disaffirm the conveyance on coming of age, without some positive and clear act of affirmation, will not amount to a ratification of the conveyance. "The reason is, that by his silent acquiescence he occasions no injury to other persons, and secures no benefits or new rights to himself. There is nothing to urge him as a duty towards others to act speedily. Language, appropriate in other cases, requiring him to act within a reasonable time, would become inappropriate here. He may, therefore, after years of acquiescence, by an entry or by a conveyance of the estate to another person, disaffirm and avoid the conveyance made during his infancy." 2 Greenl. Ev. (14th Ed.) § 366, note on page 359. In such case it seems to be settled that no passive acquiescence, unconnected with affirmative acts, will effect a ratification, short of the statutory period of limitations, where there is room for the operation of the statute. Tobey v. Wood, 25 Amer. Rep., note, and cases cited on page 31; Eureka Co. v. Edwards, 71 Ala. 248; Voltz v. Woltz, 75 Ala. 555; 3 Brick. Dig. p. 563, §§ 10-12; Philips v. Green, 13 Amer. Dec. 124, note, p. 131; Flexner v. Dickerson, 72 Ala. 318. The demurrer to the plaintiffs' first replication to E. G. Nelms' pleas was based on the idea that mere acquiescence or a failure to disaffirm the plaintiffs' mortgage by some positive act of repudiation was a legal ratification of it. This was an erroneous view of the law, and the court properly sustained this demurrer.

4. The court erred in construing the mortgage as not including any debt for advances or supplies created after October, 1880,-the law-day of the instrument. It expressly provides that if the mortgagees "shall advance or furnish C. W. Nelms any further supplies, [additional to those for which the note was given,] this instrument [or mortgage] shall stand as security for the same, as fully as if included in said note. The note and mortgage were executed in April of the year 1880, and the supplies gotten by the mortgagors were obtained for the declared purpose of making a crop. Whatever supplies or advances, therefore, which were shown to have been obtained to aid in making the crop of the current year-that is, in planting, cultivating, and gathering it must be construed to come within the terms of the mortgage. Collier v. Faulk, 69 Ala. 58; Lovelace v. Webb, 62 Ala. 271.

5. Any verbal agreement made between the holders of the mortgage and either of the defendants that the mortgage should cover or include other debts created after the year 1880, would be good as a verbal mortgage on the property of that one of the mortgagors who entered into such an agreement. Each mortgagor had a right severally to bind his own property by enlarging the legal operation of the security. Section 1731 of the present Code, prohibiting verbal mortgages, was not then in force, and can have no bearing on this case. Code 1886, § 1731; Acts 1884-85, p. 93. If the contract of mortgage, however, was a several and not a joint one on the part of the defendants, a joint action could not be maintained on such several contract, the question of misjoinder being properly presented.

The plaintiffs were estopped from showing that the wagon sued for had not been seized by the sheriff, or had not gone into their possession, under the forthcoming bond executed by them. The bond recites its seizure by the sheriff under the writ of detinue in the case, and is conditioned on the delivery of the wagon and other property by the obligors to the defendants on the failure