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The suits at law brought on these policies by Mrs. Raden's attorneys are clearly shown to have been instituted under a mistake of fact. Smith led these attorneys to believe that Langley was the agent of their client, and that the notice of cancellation given, and the return premium paid to him, effected a rescission of the policies in the defendant companies,—the Niagara Fire and the Hamburg-Bremen Insurance Companies. These suits cannot, for this reason, operate as a ratification by Mrs. Raden of the acceptance of the new policies, and as an intentional abandonment of her vested rights under the poliicies in existence when the loss occurred.

Our judgment is, that the chancellor did not err in holding the policies here in controversy to be binding on the insurers, and that his decree granting the relief prayed is free from error, and must be affirmed.


(Supreme Court of Alabama. April 29, 1889.) EXECUTION-REDEMPTION-EMBLEMENTS.

Tenants by the year under a purchaser of land at sheriff's sale are entitled to the growing crops on redemption by the judgment debtor. Appeal from chancery court, Dallas county; Thomas W. COLEMAN, Chancellor.

Bill by A. V. Gardner against R. H. Lanford and others, to redeem certain land from execution sale. A demurrer to the bill was sustained in part, and complainant appeals.

Watts & Son and 8. W. John, for' appellant. White & White, for appellees.

MCCLELLAN, J. Appellant's lands were sold under execution on September 27, 1886, and bought by appellee Lanford. A part of the land being in the possession of the purchaser in 1888, he rented it for that year to appellees Savel and King, who entered thereon as his tenants, cultivated the land, and bad a valuable crop outstanding on it on the 24th day of September, 1888, at which time a tender and offer to redeem was made by appellant, which was declined by Ianford, and to effectuate which the bill in this case was filed. The bill contains, besides the usual allegations for redemption, other averments which set up a claim to the outstanding crops, and makes a case, on the assumption of the soundness of this claim, for an injunction to prevent the gathering and removal of the crops by the defendants. The injunction was issued in accordance with the prayer of the bill, for this and other purposes not important to consider here, and afterwards, by agreement of parties, a receiver was appointed for the crops. Demurrers were interposed to the bill generally for want of equity, and specially to those parts of it which asserted complainant's right to the crops, and sought an injunction with respect to them. The cause being submitted on the bill and demurrers, the chancellor overruled those grounds of objections which went to the general equity of the bill, and sustained the demurrers which set up the invalidity of complainant's claim to the crops. The decree in this last particular is assigned as error.

The one question presented by the record is whether the tenant of a purchaser at execution sale, or the debtor, who exercises the statutory right of redemption, is entitled to the crops growing on the lands at the time of redemption. The solution of this question depends, in our judgment, on the character of the tenancy of Ford and King. There of course can be no doubt that Lanford acquired the entire estate in these lands by the sale and conveyance of the sheriff. That which was left in the judgment debtor was not property, but a mere right, by the exercise of which, in the mode pointed out by the statute, he could revest the property in himself,--a privilege whicly he might or might not avail himself of, and, failing to exercise within the statutory limits of its existence, he forever lost. The rights of Lanford in The land within the redemption period were precisely the same as they would have been after its expiration, except that until the time had elapsed his title was subject to the privilege of purchase by the debtor or those claiming through him, and these rights embraced all that attend upon the ownership; among others, the right to the incomes and profits arising from the occupation of the land, and the right to lease it, and to receive rents. He did lease it for the year 1888. His lessees were entitled to hold for that year subject to a contingency which might terminate his estate and their tenancy before the end of the term. The contingency happened, the estate fell, and with it the tenancy terminated. It needs no argument to demonstrate that the term of the lessees, contingent from its inception on the exercise of the statutory privilege of redemption by the debtor,—the uncertain act of a third party, was itself uncertain, and, if the tender and offer to redeem were made in compliance with the law, was terminated at a time and in a manner which in legal contemplation was unexpected to the lessor and lessees. In such cases the rule is universal that the tenant is entitled to emblements, and, while his tenancy is at an end, he still has the rights of ingress, egress, and regress, for the purpose of reaping what he has sown. Conceding the manifest uncertainty of the tenants' term, the authorities are uniform in support of the cunclusion we have reached. 2 Wait, Act. & Def. 221-224; 4 Wait, Act. & Def. 252, 253; 1 Washb. Real Prop. 132; Tied. Real Prop. $ 71; Weems v. Bryan, 21 Ala. 303; Price v. Pickett, Id. 741.

The result thus attained is not inconsistent with any adjudged case or recognized text which has been cited by counsel. Authorities are referred to which hold that the redemption eo instanti reinvests the title in the debtor. There can be no doubt about the correctness of that proposition, but, so far as its effect on the question involved here is concerned, it but furnishes the predicate—the determination of the estates of the purchaser and his lessees in the land-upou which the doctrine of the tenants' subsequent right to emblements depends. The argument that the tenants in this cause should not be allowed einblements because Lanford would not have been entitled to them had he cultivated the land himself would apply with equal force to all cases in which the lessee's term is defeated by the lapse of the lessor's title through the occurrence of an unforeseen event, to the emasculation of the salutary doctrine, which has existed since the days of feudalism, that whenever a tenancy, other than at sufferance, is, from the first, of uncertain duration, and is unexpectedly terminated without fault of the tenant, he is entitled to emblements.

It is settled in this state that rents which the purchaser has received may be set off against his claim for permanent improvements; and doubtless rents which he had reserved, but which did not mature until after redemption, would, on general principles, belong to the redemptioner. It would be to the last degree inequitable to allow the redemptioner, on the one hand, to set off the purchaser's claim for improvements with the rents he had received from the tenants, or to receive such rents if they fall due after redemption, and, on the other, to take from these tenants the crops grown on lands, the rent for which he had either received, or had the benefit of, in his settlement with their landlord.

The effect of that part of the decree which is assigned as error was to deny the complainant's right, under these circumstances, to the emblements, and it is atlirmed.



NOTE. A star (*) indicates tbat the case referred to is annotated.


3. But although there has been a final ad-

justment of mutual demands, and a balance
Plea in abatement, see Criminal Law, 6; struck, a recovery cannot be had upon an ac-
Pleading, 1.

count stated unless the amount such bal-
Another action pending.

ance is shown.-Id.

4. Where only one or two items of an ac-
1. As the power of the probate court is in- count, consisting of money, are objected to,
adequate to compensate for inequalities in par- the items not objected to will be considered
tition, or to take an account of rents, or to

provide for relieving the land of incum-
brances, or to adjust and equalize advance- Impeachment.
ments, the pendency of proceedings in it for
partition is no objection to a subsequent bill ment on account of fraud or mistake.- id.

5. An account stated is open to impeach-
in equity for the same purpose.-Marshall v.
Marshall, (Ala.) 475.
2. The lands being situated in several coun-

ties, while the probate court has jurisdiction
in one only, the pendency of such proceedings of chattel mortgages, see Chattel Mortgages,
would not be good ground of demūrrer to the

6, 7.
bill in equity, as such demurrer goes to the debt, see Limitation of Actions, 12.
whole bill.-Id.

Enticing away servant, see Master and Ser-Abatement of, see Abatement and Revival.
vant, 1.

Against state, see States and State Officers,


By and against husband and wife, see Hus-
Evidence of, see Criminal Law, 26-28.

band and Wife, 25, 26.

partnership, see Partnership, 6, 7.
Accord and Satisfaction.

bailee, see Bailment.

executors, etc., see Executors and Ad-
See Compromise.

ministrators, 21, 22.

For breach of covenant, see Covenants, 4-7.

libel, see Libel and Slander.

negligence, see Carriers, 2-10; Horse and
See Account Stated.

Street Railroads, 4-6; Master and Serv-
Of executors, etc., see Executors and Ad- ant, 2–5; Railroad Companies, 8-24.
ministrators, 2-6.

price, see Sale, 7–10.
guardian, see Guardian and Ward, 4.

Limitation of, see Limitation of Actions.
Opening and surcharging, see Equity, 13.

On bills and notes, see Negotiable Instru-

ments, 7-9.

bonds, pleading, see Bonds, 1-3.

contracts, see Contracts, 11-17.
What constitutes.

injunction bonds, see Injunction, 8-11.

insurance policies, see Insurance, 15-18.
1. Where an account against a party is ren- judgments, see Judgment, 9.
dered, showing the amount due, and is ac- replevin bonds, see Replevin, 3, 4.
knowledged to be correct, it is sufficient to sheriffs' bonds, see Sheriffs and Consta-
constitute an account stated, though such par-

bles, 3-9.
ty has counter-claims which are not deducted. Particular forms, see Assumpsit; Ejectment;
-Ware v. Manning, (Ala.) 682.

Partition; Replevin; Trespass; Trover
2. Where parties meet to look over each and Conversion.
other's accounts, and the correctness of the Parties to, see Parties.
items comprising the mutual demands is ad. Pleading, see Pleading.
mitted, it is not essential to an account stated Practice, see Practice in Civil Cases.
that one account should be subtracted from Venue of, see Venue in Civil Cases.
the other.-Id.

To set aside tax-sale, see Taxation, 3.


Separate claims—Jurisdiction. 2275 and 2440, requiring that a title to effect a

1. A landlord may sue separately for each transfer must be in writing.--good faith and
year's crops grown on the demised premises, possession alone are not suficient to acquire
and sold to defendant by the tenant, who immovable property by the prescription of 10
holds under a separate contract for each year, years.—Beer v. Leonard, (La.) 257.
and fails to pay the rent, and a justice of the color of title.
peace has jurisdiction, where the amount in-
volved in each suit is within it, though the stituted by a railroad company in the commis-

2. Proceedings for condemnation of land in-
whole claim exceeds his jurisdiction.-McLensioners' court, even though invalid for irregu-
don v. Pass, (Miss.) 234.

larities of procedure, constituted color of title,

under which the company could adversely
2. Two actions pending in the same court be- hold the premises. - Mobile & G. R. Co.
tween the same parties, and each based upon Cogsbill, Ala.) 188.*
matters ex contractu, are properly consoli. Evidence.
dated, especially when done with consent of

3. In ejectment, there was evidence that S.
the parties. -Birmingham Flooring Mills v. took actual possession as early as 1852, and
Wilder, (Ala.) 307.

cultivated the land until 1871; that he paid the

taxes and exercised acts of ownership until
Adjoining Land-Owners. 1880, when he sold to M.; and that M. then ex-

ercised acts of ownership until he sold to de-
See Fences.

fendant, who took possession and exercised
Diversion of surface water, see Surface acts of ownership up to the time of trial.

Held, that the evidence warranted the sub-

mission to the jury of the question of adverse

holding, its connection and continuity.-Black

v. Pratt Coal & Coke Co., (Ala.) 89.
Of court by judge, see Judge, 2.

4. Where defendant in ejectment relies only

on adverse possession, it may be shown that

the continuity of his possession was broken by

dispossession under the judgment of a court
See Executors and Administrators.

of competent jurisdiction, in an action of un-

lawful detainer.-Bishop v. Truitt, (Ala.) 154.*

5. Correspondence and transactions between
a grantor and the officers of the grantee, a

railroad company, occurring before execution
Ground for divorce, see Divorce, 2, 3.

of the conveyance and covenants, may be ad.
What constitutes.

mitted to prove the grantee's permissive oc-

cupation, and to rebut the idea of adverse
1. On a trial for living in adultery, under possession. - Mobile & M. Ry. Co. v. Gilmer,
Code Ala. 1886, $ 4012, the jury were properly | (Ala.) 138.
instructed that occasional acts of adultery do
not make out the offense; but if there was

adulterous intercourse, and such a condition 6. Where, in ejectment, both parties claimed
of the minds of the parties that, when oppor- through one W., and it was incumbent on
tunity offered, the act would be repeated, de- plaintiff, who claimed title by adverse posses-
fendant was guilty; and that this condition sion, to show a disavowal by his grantor of
makes a living in adultery.---Bodifield v. State, W.'s title, and that notice of such disclaimer
(Aia.) 559.

was brought to W., it was error for the court

to charge, without reference to such dis-
2. They were also properly instructed that under whom he acquired possession, had, for

claimer and notice, that if plaintiff, and those
they might look to any evidence of the con- the statutory period before suit, been in act-
duct of defendant and his alleged paramour, ual, open possession, under claim of title, this
showing that they had sexual intercourse, or would authorize a verdict for plaintiff, unless
lived together in adultery, in 1895 or 1886, to defendant had shown a better title.—Bishop v.
explain their conduct during the time covered Truitt, (Ala.) 154.
by the indictment, viz., from September 29,
1886, to September 29, 1887.-Id.


For taking deposition, see Deposition, 3, 4.
Bill to set aside deed, laches, see Equity,


See Principal and Agent.
Prescription of ten years.

1. Under Civil Code La, art. 3478, providing Agricultural Department.
that he who acquires an immovable in good
faith, and by a just title prescribes for it in 10 Public printing for, see Public Printer.
years, and article 3479, providing that to ac-
quire ownership by such prescription one con.

dition shall be a title which shall be legal and
sufficient to transfer the property, and articles of homestead, see Homestead, 1


ALTERATION OF INSTRU- Jurisdictional amount.

5. Where the pleadings contain a specific

allegation stating definitely the value of the
Pleading-Burden of proof.

object in dispute, and the record contains
In detinue based on a chattel mortgage exe- nothing in contradiction of such allegation, it
cuted by defendant to plaintiť, a plea that an will be held as conclusive on the question of
alteration was made in the amount of the jurisdiction, and cannot be contradicted for
mortgage debt as stated in the instrument by the first time by ex parte affidavits in this
increasing it to a certain amount, and by add court.--- Webb v. Hoth, (La.) 536.
ing the name of a mortgagor, after the instru-

6. Where, on appeal by an executor from a
ment was executed, without defendant's judgment maintaining an opposition to his ac-
knowledge or consent, is good. Such plea count, it appears that the succession funds
implies that the alteration was after delivery, shown by the account for distribution exceed
and while in plaintiff's custody. It need not $2,000, the supreme court of Louisiana has
allege that the alteration was made by plain- jurisdiction, whatever be the amount claimed
tiff, or with his knowledge or conseut, but the by the opponent. - Succession of Cassidy,
burden is on him to explain the alteration.--|(La.)

Hill v. Nelms, (Ala.) 796.*

7. Where a party resists the payment of a
tax on the grounds of payment, or illegality in

the assessment, or of the mode of levy, and of

other irregularities involving the validity of
In deed, parol evidence to explain, see Deed, not the value of the property seized therefor,

the tax, the amount of the tax claimed, and
3, 4.

is the matter of dispute. In such cases, if the

amount of the tax does not exceed $2,000 the
Of pleadings, see Pleading, 9-11.

supreme court has no jurisdiction. -Johnson
v. Cavanac, (La.) 61.

8. The supreme court of Louisiana has no

jurisdiction of a suit instituted to have an at-

torney's privilege for his fee for less than
Increase, lien of mortgage, see Chattel Mort- $2,000 recognized on a judgment exceeding
gages, 3.

that sum.--Young v. Duncan, (La.) 861.
Ordinance regulating running at large, see
Municipal Corporations, 5, 6.


9. Under Code Prac. La. art. 318, rule 29 of

the civil district court of Orleans, which pro-

vides that appeals from city courts niust be

filed before the expiration of the tenth day
See, also, New Trial.

after the bond of appeal has been filed in the
In criminal cases, see Criminal Law, 57–63. city court, must be construed so as to exclude,
Jurisdiction of appellate court, see Courts.

in the computation of the time, the day on
Suspensive appeal from appointment of pro- which the bond has been filed, as well as the
visional syndic, see Insolvency.

day on which the transcript is required to be

filed in the appellate court. There is no dif-

ference between rule 29 of the civil district
1. The supreme court of Louisiana has no court and section 2093 of the Revised Statutes
jurisdiction over tax suits, regardless of the of 1870.-- State v. Ellis, (La.) 63.
amounts involved, unless the legality or con-

10. Where an appeal at law is entered during
stitutionality of the tax be in contestation, the term of the circuit court at which the
Johnson v. Cavanac, (La.) 61.

judgment appealed from was rendered, but

the appeal-bond is not given until after the
Who may appeal.

expiration of 30 days from the adjournment
2. Where, on opposition to an executor's ac- of the term, the appeal will be dismissed.-
count, the account has been amended by Brown v. Wheeler & Wilson Manuf'g Co.,
placing the opponent therein as a creditor of (Fla.)

the succession, the executor, in his represent-

11. The fact that an appeal-bond, on appeal
ative capacity, has an appealable interest in from a justice, is executed and approved be-
the judgment on the opposition, and, if he fore rendition of the judgment appealed from
deems it unjust, has not only the right to ap- does not invalidate the bond. - James y.
peal, but it is his duty to do so.-Succession Woods, (Miss.) 106.
of Cassidy, (La.) 292.

12. Where an appeal-bond has been given
3. A defendant in attachment proceedings, with security approved by the justice, appel.
in which judgment has been rendered in lant should be allowed to give a new bond if
favor of plaintiff, cannot appeal from a judg- the first proves defective in any respect.-Id.
ment in a suit instituted by an intervening Practice

Assignment of errors.
claimant.--McNeill v. Kyle, (Ala.) 461.

13. An assignment to the overruling of a
Appealable judgment.

plea in abatement, which does not set out the
4. Code Miss. $ 2309, denying appeal from form of the plea, nor show upon what ground
judgments by confession or consent, does not it was overruled, cannot be considered. --Mor.
apply to justices' courts.-James v. Woods, ris v. Beall, (Ala.) 252.
(Miss.) 106

14. An appeal from a judgment will not be


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