try afterwards. One already in possession, I evidence to justify such statement.-Young even though a trespasser, or there by implied v. Pollak, (Ala.) 279. permission, cannot, by a warning then given, be converted into a violator of the statute.- Goldsmith v. State, (Ala.) 480.
9. Under such circumstances, a charge of the court "that defendant had a right to go on the premises, as any one has to go on the land of another, but these things are put at an end when the owner or possessor of lands warns him not to do so," was calculated to mislead the jury.-Id.
7. A charge which, as a whole, may have misled the jury, and caused them to arrive at a wrong conclusion, is cause for reversal.— Meinhardt v. Mode, (Fla.) 672.
8. It is proper to refuse instructions as mis- leading when they are based on the theory of a party as to the facts in evidence, and ignore the legal effect of other facts, applicable to the relation and rights of the parties.-Florida Ry. & Nav. Co. v. Webster, (Fla.) 714.
10. In a prosecution under such statute the state, having proved warning and an entry a month or two afterwards, cannot show that 9. It is error for the court in its instruction defendant entered a second time, after the to assume as proved a material fact concern- prosecution was commenced, and an instruc-ing which the evidence is conflicting.—McKee v. Munn, (Miss.) 616.
tion based on such evidence is erroneous.- Chappell v. State, (Ala.) 419.
See, also, Appeal; Judgment; Jury; New Trial; Prohibition, Writ of: Witness. Directing verdict, assessment of damages, see Replevin, 1.
1. It is optional with the court to have the defendant or his counsel called, and the fail- ure of the record to show a formal call is a defect of form, and not of substance, and is cured after final judgment by Code Ala. $2835.-Home Protection of North Alabama v. Caldwell, (Ala.) 338.
2. A defendant who does not insist upon the trial of an exception before the case is tried on the merits is not presumed to have waived the exception, when the exception suggests a defect which the court may notice ex proprio motu, such as an omission in a rule to erase a mortgage, to make the mort- gagee whose rights are involved a party, or to notify him.-Ashbey v. Ashbey, (La.) 546.
3. Where, in attachment proceedings, two claimants assert a right to the property at- tached by purchase from the debtor, it is error to exclude one of the claimants from the court-room while the other is testifying.- Bernheim v. Dibrell, (Miss.) 693. Recalling witness.
10. Where there is a substantial conflict in the evidence, the trial court properly refuses to take the question involved from the jury.— Dorgan v. Weeks, (Ala.) 581.
11. A charge cannot be said to assume facts not in evidence, when it is so framed as to cast upon the jury the determination of the question to which the facts relate, and there is some evidence on the question to be con- sidered.-Florida Ry. & Nav. Co. v. Webster, (Fla.) 714.
12. Where defendant sets up a particular defense, and plaintiff, without questioning its legal sufficiency, takes issue on it, and the proof fully sustains the defense, defendant is entitled to a general charge in his favor.- Columbus & W. Ry. Co. v. Wood, (Ala.) 463.
13. Where parol evidence is conflicting, an affirmative charge should not be given in favor of either party.-Beard v. Horton, (Ala.) 207.
14. In an action for labor and material, an instruction that plaintiff must make out his case to the reasonable satisfaction of the jury, and that, if the evidence leaves the jury in reasonable doubt as to any item of plaintiff's account, plaintiff cannot recover as to such item, is properly refused.-Birmingham Fire Brick Works v. Allen, (Ala.) 454.
15. On an issue as to the amount of brick in a certain kiln, where the evidence is that plaintiff had requested the president of de- fendant corporation to go with him to meas- ure the brick, and that the president had de- sider such evidence, in connection with all the clined, an instruction that the jury might con- other circumstances in the case, while mis- misleading tendencies should have been cor- Its argumentative and rected by a counter-charge requested by de-
4. The rule that a witness cannot be recalled after having been once on the stand does not apply where he is recalled for different testi-leading, is not error. mony, the occasion for which has arisen since his former examination. -Mississippi & T. R. Co. v. Gill, (Miss.) 393.
Objections to evidence.
5. An objection to evidence, taken on the erroneous supposition that it would vary a written instrument, should be overruled, though the evidence itself is incompetent for other reasons.-Sharp v. Hall, (Ala.) 497. Arguments of counsel.
6. The domicile of W. being in issue, a re- mark by counsel that "in 1881, and up to 1883 or 1884, when W. lived in Chambers county, Ala., he was dodging the officers of the law for awhile in Alabama, and then in Georgia, should not be permitted where there is no
extent that her stock had been taken to reim- burse the father he would be held as trustee in invitum.-Winston v. Mitchell, (Ala.) 741. 6. As the Alabama married woman's act of
February 28, 1887, abrogated the trusteeship of the husband over the wife's separate es tate, and enabled her to sue for the income and profit of it, she is entitled to charge the land with interest from that date on the amount of her money used.-Id. Appointment of trustee.
est; and church proceedings appointing a person to make application are admissible to show his authority to make the application.— Allison v. Little, (Ala.) 221. Rights of purchaser of trusts.
1. Where a purchaser of lands, unable to make the deferred payment, borrows money from a third person, to whom he procures the title to be conveyed by his vendor, the third person agreeing to convey to the purchaser on repayment of advances, the relation be- tween the parties is that of vendor and ven- dee, and the remedy for the breach of the agreement is a bill, in the nature of a bill for specific performance, to enforce the trust, and 7. Under Code Ala. 1876, § 3732, the register not a bill to have the deed declared a mort-in chancery has authority, on the death of the gage.-Mosely v. Mosely, (Ala.) 732. trustees of an express trust, to appoint sue- 2. Such an agreement is within the statutecessors, on the application of persons in inter- of frauds, (Code Ala. 1886, § 1845,) which pro- vides that "no trust concerning lands, except such as results by implication or construction of law, can be created" except in writing. There being no averment that the deed to the third person was obtained by fraud or deceit, or that any was intended or practiced in mak- 8. Authority to third persons to transfer ing the agreement, the fact that he after-stock, expressing that it was given on receipt wards refused to convey is not sufficient to of full consideration, if coupled with a secret bring the case within the exception, as the trust, does not carry the trust to the pur- fraud must have been the means of acquiring brought home to him. The breach of trust, if chaser, unless knowledge of such trust is any, is chargeable to the persons having au- thority to transfer.-Foster v. Ambler, (Fla.) 9. The rule that a purchaser of property from a third person incumbered with a trust cannot hold against the true owner if the con- sideration of the purchase is only an ante- cedent debt does not apply where there is further consideration in the surrender of a valuable security for the debt.-Id.
3. Where a husband conveys land to his wife on her promise to make a will in his favor, though equity cannot compel specific performance by directing the execution of a will, yet it will fasten upon the land conveyed a trust as for the purchase money, and, so far as the land will furnish the means, will se- cure to the husband what he lost by her fail- ure to keep her promise.-Manning v. Pippen, (Ala.) 572.
4. If the promise of the wife be treated as simply a contract to receive and hold the land, in express trust to compensate her gran- tor by making a will, the statute of frauds ap- plies, but if it be shown that the deed was ob- tained with a fraudulent intent, without any intention to make a will, and pursuant to that intention no will was made, a trust will result from such fraud, and the question of the stat- ute of frauds becomes immaterial.-Id.
5. Complainant's father had become liable as accommodation indorser of her husband on notes held by a bank and W. The husband was also largely indebted to others. On af- firmance on appeal of a judgment against the husband, on the supersedeas bond of which the father was surety, complainant proposed to her father to sell her bank-stock, and pay the debts for which he was liable, and secure himself as to the judgment by certain land. He proposed to her to pledge her stock, and with the proceeds pay the W. debt and the judgment, secure herself by a mortgage on her husband's land, sell it at private sale, and save his indorsement. The father purchased the judgment, and afterwards a note by com- plainant and her husband for part of the amount was given him, which was paid with the proceeds of complainant's bank-stock. The husband's land was afterwards sold to the father under execution issued on the judg- ment. Held, that the complainant was not entitled to a resulting trust in the entire land, on the ground that the judgment had been bought for her and with her money, but to the
1. An item included in a mortgage debt was $130, the price of a mule. The mortgagor ne- gotiated the purchase with the owner, agreed on $102.50 as the price, and requested the mortgagee, who was advancing him means, to pay for it, which he did, and the mule was de- livered to the mortgagor. The latter testi- fied that no price was agreed on between him and the mortgagee, while the mortgagee tes- tified that he bought the mule for cash, and sold it to the mortgagor for $130 on credit. Held, that the transaction was not a sale by the mortgagee to the mortgagor, but a usuri- ous loan. Meyer v. Cook, (Ala.) 147.
2. A commission merchant advanced money to a planter, taking his note therefor due in the next cotton season, with interest from date, with an additional agreement that for every $10 loaned the planter would deliver to the merchant one bale of cotton for storage and sale on commission. Held, that where there was a reasonable expectation that the planter could deliver the cotton, the contract was not usurious, and was binding.-Harmon v. Lehman, (Ala.) 197.
3. In such a case, where the price agreed to be paid as commission for the sale of the cotton is about 50 per cent. more than the customary price charged where no money is advanced, the transaction is usurious.-Ïd.*
4. One who pays a usurious mortgage with- out notice of the usury, at the request of the mortgagor, may recover from him the sum so paid.-Perdue v. Brooks, (Ala.) 126.
Usury as a defense.
5. Where one enters into a contract, in con- sideration of a loan, to deliver certain cotton, to be sold on commission, which contract is usurious if the borrower has no reasonable expectation that he can comply with its terms, the burden is on him to show that in making the contract he had no such expectation. Smith v. Lehman, (Ala.) 204.
bounds, parol evidence was admissible on be- half of the vendee, to show that the sale was in fact by the acre, and that the parties adopt- ed this mode of description to fix the aggre- gate price.-Hodges v. Denny, (Ala.) 492. Assignment of contract-Rights of assignee.
4. An assignment by the holder of a contract of purchase of land, of all the assignor's "right, title, and interest" in the land, without cove- nants of warranty, seisin, or future enjoy- ment, transfers only such interest as the as- signor had, and does not make him liable for a failure of title.-Griel v. Lomax, (Ala.) 325. 6. Where no usury is included in notes given 5. An intentional concealment by the assign- for land, payment of usurious interest for ex- or of a contract of purchase of land of the tension of time on the first of the notes, by a fact that he and his co-vendees in the con- subsequent agreement, is no defense to a fore-tract were bound to execute joint notes for the closure of the vendor's lien to satisfy the sec- purchase price amounts to legal fraud, enti- ond note.-Woodall v. Kelly, (Ala.) 164. tling the assignees to recover from him the consideration paid.-Id.
7. An answer to such a bill, averring that complainants after the maturity of the first note demanded 12% per cent. interest thereon for a year's indulgence, which respondents promised, and that upon the expiration of that time they demanded and received 15 per cent., does not sufficiently allege the facts of the usury to raise that question. -Id.
Pleading and proof, see Pleading, 12, 13
VENDOR AND VENDEE. See, also, Deed; Fraudulent Conveyances; Judicial Sales; Specific Performance. Lex rie sita governs, see Conflict of Laws. Sale of homestead vendor's lien, see Home- stead, 4. Vendor's lien, see Sale, 6.
6. Evidence that after the assignment the assignor had a conversation with his co-ven- dees, who then told him that they would not sign joint notes with the assignees, and would have nothing more to do with the contract, is admissible to show the materiality of the con- cealed fact that the notes were to be signed jointly, and that the assignees were preju- diced thereby.-Id.
Rights and remedies.
7. In an action by a vendee against a vendor, a petition which demands reimbursement for taxes paid since sale by the vendee, which ex- isted anterior thereto, and for damages sus- tained by being compelled to sell other prop- erty at public auction, in order to pay said but not as to the latter.-Sandidge v. Hunt, taxes, states a cause of action as to the former, (La.) 55.
8. In an action by vendee against vendor for reimbursement for taxes paid by the ven- dee since sale, but which existed prior there- to, no allegation of eviction is necessary as a sine qua non for the discharge of the taxes incumbering the property acquired. It is only necessary to allege the existence and dis-
1. A writing acknowledging the receipt of a sum as part purchase price of land, the title to be executed at a future date, and the terms to be ascertained by reference to another instru-charge of the same.-Id. ment, is not a sale which transfers the owner- ship of the property, but a promise of sale on Dissolution of sale. the conditions imposed, and confers the right on the promisee to compel performance on the part of the promisor.-Thompson v. Duson, (La.) 58.
2. A letter, fixing terms of sale of land, and expressly referring to an inclosed plat, and to the prices marked thereon, made the plat and the prices affixed a part of the contract, the same as if embodied in the letter itself.-Sayre v. Wilson, (Ala.) 157.
Description of land.
3. A bond for deed described the land as "all the land lying on the north side of Denny's ferry and Rock Mills road, and four acres on the south side of said road, containing in all 82 acres, more or less; said land off of the N. W. of the S. of sect. 13, and a part off of the west end of S. of sect. 12, in town 24, range 25." Held that, notwithstanding the words, "82 acres, more or less," and in view of the uncertainty of description by metes and
9. Under a judgment dissolving the sale of an immovable as an effect of the dissolving condition, express or implied, for non-payment of the price, the evicted vendee owes rents and revenues to the owner who has evicted him for the whole time of his possession, and not from the date of the suit for dissolution only.-McKenzie v. Bacon, (La.) 640.
10. As such a judgment results from the de- fault of the original purchaser, the dissolution of the sale depends upon an event happening at a date posterior to the contract, and not affecting its validity ab initio, and of which the evicted vendee had no control. Hence his good faith is not affected by the happening of the event giving rise to the dissolution of the sale, or by the institution of the suit, which led to the application of the resolutory condi- tion.-Id.
11. In determining the right of the evicted vendee to recover the value of improvements placed by him on the property during his pos
session, ordinary repairs, necessary to the en- | proper acknowledgment of a deed defectively joyment of the object sold, cannot be classed as improvements.-Id. Vendor's lien.
executed by the vendor and his wife which they have always been willing to make.-Id. Bona fide purchaser.
12. Where one of two notes taken by a ven- 21. The grantee of land who agrees in con- dor for the price of land on which they are a sideration thereof to maintain the grantor, his lien is assigned by him, and is afterwards father, who is insolvent, for life, cannot re- paid by a subsequent vendee of the land assist the foreclosure of a vendor's lien for want part of the price of his purchase, such subse- of notice thereof, as such an agreement is quent vendee has a lien to the extent of the fraudulent per se as to creditors, and the note so paid superior to that of the original grantee is therefore not a bona fide purchaser. vendor under the note retained by him.-Par--Id. sons v. Martin, (Ala.) 467.
13. Where a conveyance recites that certain notes are given as a part of the purchase price, a purchaser from the vendee is bound to take notice of the facts, and cannot defeat the ven- dor's lien on the ground that he is an innocent purchaser.Thompson v. Sheppard, (Ala.)
14. Unless waived, a vendor's lien exists against the land of persons to whom the pur- chaser conveys it with his vendor's consent, for the amount of notes given by the vendor, vendee, and subvendees to a third person, in lieu of the original unpaid purchase-money notes which were secured by such a lien, and which were the property of, and surrendered by, such third person. - Woodall v. Kelly, (Ala.) 164.
15. The fact that the vendor and vendee signed the new notes with the subvendees does not waive the lien, when it is mutually agreed as part of the transaction that the lien shall not be relinquished.-Id.
16. Notes referred to in a deed as part of the consideration, which recite that they are given for the unpaid purchase price, and which are signed only by the purchaser, are not a waiver of the vendor's lien merely be- cause they contain a waiver of the maker's personal property exemption.-Thompson v. Sheppard, (Ala.) 334.
17. An oral agreement at the time the note was given that the husband's name thereon as personal security should not operate as a waiver or abandonment of the vendor's lien is sufficient to preserve the lien.-Ramage v. Towles, (Ala.) 342.
22. A purchaser of land, the purchase money for which he knows to be unpaid, is charge- able with notice of a vendor's lien thereon, as upon learning of the debt he should have in- quired as to whether such a lien had been waived.-Id.
VENUE IN CIVIL CASES. Where action to be brought.
1. In Louisiana an action against a railroad company for damages for injuries resulting from defendant's neglect to maintain a suffi cient crossing, must be brought at the domi- cile of the company, as such actions are not within the exception of Code Prac. art. 165, subd. 9, providing that "In all cases where any corporation shall commit trespass or do anything for which an action for damages lies, it shall be liable to be sued in the parish where such damage is done or trespass com- mitted."-Caldwell v. Vicksburg, S. & P. R. Co., (La.) 17.
2. Under Code Miss. § 1847, authorizing suits to be brought in the chancery court of the county where the property involved may be, or in which one or more of the defendants resides or is found, or in any county in which an action of the same nature might be brought in the circuit court, and providing that suits against an administrator touching the per- formance of his official duties, for an account- ing, or for distributive shares, etc., may be brought in the county where administration was granted, and section 1834, giving juris- diction to the court from which letters of ad- ministration were issued to determine all questions relating to the trust, of all demands against the estate by creditors, distributees, 18. A bill to enforce a vendor's lien, which etc., and of actions on bonds taken in the describes the property as being the residence ministrator against one to whom he has sold course of administration,-an action by an ad- of complainant at the date of conveyance, the personal property of the estate for the bounded on the east by a designated section purchase price, a bank with which the pur- line, on the west by a designated public road, chaser had deposited the funds for the pay- and on the north and south by the lands of ment of the debt being also a defendant, can other persons, and being a part of a small sub-only be brought in the county in which one of division of a government section, the number the defendants resides or is found.-Pate v. of which, and the range, township, county, Taylor, (Miss.) 515. and state are given, complies with the rule re- quiring reasonable certainty of description.- Thompson v. Sheppard, (Ala.) 334.
19. A purchaser in possession of land can- not recoup damages for breach of warranty of title as to part of the land in a suit to enforce a vendor's lien unless his vendor is insolvent. -Woodall v. Kelly, (Ala.) 164.
20. In such case the purchaser cannot com- plain of a decree of foreclosure if it is con- ditional upon the perfection of his title by the
3. Where suit by attachment is instituted in a county other than that of defendant's res- idence, but where one summoned as garnishee resides, under Code Miss. § 2418, authorizing such a proceeding, and not providing for a change of venue to the county of defendant's residence, the granting of a change of venue to the latter county on the ground that the suit was not brought in the proper county
will not confer jurisdiction on the court of the | Nuncupative wills. latter county.-Baum v. Burnes, (Miss.) 697.
Change of, see Criminal Law, 8.
See Criminal Law, 45, 46.
Verification.
Of pleadings, see Pleading, 8.
Liability to mortgagee.
Warehousemen who receive mortgaged goods for storage from the mortgagors, and thereafter deliver them to a third person on production of the warehouse receipt, are liable in trover to the mortgagee whose mortgages are recorded in another county, though they have no actual notice of his claim.-Hudmon v. Du Bose, (Ala.) 162.
Of chattels, see Exchange, 1, 2.
2. Under Rev. Civil Code La. art. 1578, in the confection of a testament nuncupative in form, and received by public act, the act must be received by a notary in the presence of three witnesses residing in the parish where the instrument is made.-Weick v. Henne, (La.) 528.
3. Such nuncupative wills are full proof of themselves under Rev. Civil Code La. art. 1647, and must bear upon their faces the evi- dence that all the formalities required by law have been complied with. An omission of any formality cannot be supplied by evidence dehors the testament. Succession of Volmer, 4 South. Rep. 254, affirmed.-Id.
4. Upon that question, as to whether an in- strument conveying property, but showing on its face that the use thereof is reserved dur- ing the maker's life-time, is a deed, or a will, the facts that the maker of the instrument was without near relatives, and was attached to the donee, who was of her family; that she directed the scrivener to write a will, and ex- ecuted the instrument drawn by him, know- ing its contents, and had it attested, and did not deliver it, but placed it in an envelope with an indorsement that it was not to be opened during her life,-are competent evi- dence.-Sharp v. Hall, (Ala.) 497.
5. A clause in such an instrument, stating that it is intended in part to dispense with the necessity of administration on the maker's estate, may be considered in determining whether the maker intended it to take effect
Obstruction of stream, see Logs and Log- during her life.-Id. ging, 1, 2.
6. The fact that the maker did not dispose of all her property is likewise admissible on Defense under the question of whether she intended the in- strument as a will.-Id. Construction.
statute. An act authorizing the formation of a com- pany to open and improve the navigation of a river, with authority to remove obstructions, furnishes no defense to an indictment against the officers of the company for injuries caused to a dam by floating logs over it, where it does not appear that the terms of the act have been complied with.-Olive v. State, (Ala.) 653.
Right of, see Easements, 1, 2.
Wife's Separate Estate. See Husband and Wife, 3-17.
See, also, Executors and Administrators. Validity and requisites.
7. A will contained the following provision: I bequeath to my beloved wife all that lot of ground in N., [describing it,] and I also be- queath to my beloved wife all my lands known as 'Prospect Hill' plantation, "together with certain personal property thereon, "including all the house-servants except those conveyed to M. and J. by me this day. * * This bequest is subject to a legacy to M. and J. of $300 per annum." Held, that only the "Pros- pect Hill" plantation was subject to the leg. acy.-Carroll v. Botsai, (Miss.) 823.
8. One clause of a will devised to H., a house, some jewelry, a portion of the furni- ture, and silver-ware, and added H. "to have all that I don't make any disposition of." By another clause after the payments of debts, and sale of certain real estate, H. was to have $2,000, "the balance to be divided between " L. and J. Held that H. receives the balance of the furniture and silver-ware not disposed of, and L. and J. the balance of the money de- rived from the sale of the real estate. Suc- cession of Bobb, (La.) 757.
1. An instrument conveying property, but showing on its face that the use thereof is re- served during the maker's life-time, may be 9. A will by which the testator bequeaths either a deed or will, the class to which it be- the usufruct of part of his property to his longs being determinable upon all the circum-wife, wishing it to continue in others after stances surrounding the parties and attending its execution.-Sharp v. Hall, (Ala.) 497.
the death of his wife, and gives the naked ownership of such part and the full owner-
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