The bill alleges, that complainant is a married woman, and prior to the year 1887, was the owner of the real property in the city of Montgomery, which is described in the bill; that prior to the year 1887, said property was sold for taxes, by the tax collector of Montgomery county and was purchased by him in the name and for the state of Alabama; that afterwards, on the 24th of February, 1888,the auditor of the state sold said lands to Charles L. Flint, and conveyed to him all the right, title and interest of the state in the same, as shown by his deed attached to the bill. Said deed, after reciting the purchase by the state of said lands, and that "Charles L. Flint, grantee of the party who owned said lands at the time of said sale, did on the 24th February, 1888, make application to the auditor of the state, to have the tax collector of said county assess the value of said lands, and the taxes on the same for each year between the date of the sale of said lands and the date of said application," and said requirement having been complied with, as provided for by the act of February 28, 1887, concluded as follows: "Now, therefore, I, M. C. Burke, as auditor of the state of Alabama, in consideration of the premises and by virtue of the provisions of the act of February, 1887, for the relief of parties whose lands have been sold for taxes, do hereby grant, bargain, sell, alien and convey unto the said Charles L. Flint, all the right, title and interest of the state in and to the following described lands," describing them. It is further averred, that prior to the 19th day of February, 1891, said Flint departed this life, and on that date complainant purchased from his widow and his only heirs, who were adults, all the right, title and interest of the said Flint at the time of his death, as acquired by him by his said purchase from the state. Their deed is exhibited to the bill, and purports, in consideration of $1,192.66, to rescind, release and quitclaim to the complainant all their right, title and interest in said lands which had been acquired by the said Flint under and by his deed from said auditor. Complainant further stated that about the 1st January, 1884, the city council of Montgomery filed their bill in the said chancery court of Montgomery, against complainant to enforce the collection of taxes alleged to be due to it from complainant, on said property, accruing between the years 1873 and 1882, inclusive, and that under said bill, said court, in August, 1884, rendered a decree in that behalf for taxes due before that year on said lands described in the bill, for the payment of the same and ordered their sale, if said decree was not paid as directed; that afterwards, in October, 1885, the city recorder of Montgomery ordered said lots to be sold for taxes alleged to be due and unpaid to the city, for the year 1884, accruing subsequently to the taxes embraced and included in said decree of August, 1884, and on the 30th of November, 1885, the clerk

of said city council advertised and sold the same, and Sallie G. Thorington became the purchaser thereof, paying the taxes assessed against them for 1884, and all interest, charges and costs claimed in that proceeding; and said clerk gave to her certificates of purchase, as the statute required, and thereby cut off and destroyed all liens and rights held by said city council of Montgomery for taxes claimed to be due and delinquent before that time. It is further alleged, by complainant, "that as an act of precaution, and to remove all seeming or actual cloud from her title to said land, in so far as the same was created by the said sale of the city council of Montgomery to Sallie G. Thorington, she has redeemed the same from said Thorington and now holds the same under her said purchase of all the right, title and interest of the state of Alabama, through Charles L. Flint by deed as aforesaid from his heirs and devisees freed from all the taxes, costs and charges now attempted to be set up and enforced by said city council of Montgomery as aforesaid. Yet, notwithstanding the settlement of said decree of August, 1884, aforesaid, in the manner hereinbefore stated, said city council of Montgomery is now attempting to enforce and collect the said decree and has advertised the said property to be sold for the payment of said decree, on the 5th day of June, 1893." The bill prayed for a temporary injunction against the execution of said decree, that it be annulled and declared to be of no effect, and that on the final hearing of the cause, the injunction be perpetuated. From the record it appears that the bill was sworn to by J. S. Winter before Hon. James J. Banks, judge of the tenth judicial circuit, on the 2d of June, 1893. It further appears, he issued his fiat, granting the injunction prayed for, on "complainant entering into bond in the sum of $300, payable as provided by law;" and the bill was filed on the 5th June, 1893, at 11:05 o'clock a. m. The injunction was also issued and the bond executed, that date. On June 17, 1893, in vacation, the defendant moved the court to discharge and dissolve said injunetion, but on what grounds does not appear. On the same day, the complainant having had due notice, the chancellor at chambers, ordered and decreed that the injunction be discharged, "as having been allowed improperly, in an improper case," and further decreed that said injunction be dissolved. From this decree the complainant appealed to this court, and assigns as error said decree discharging and dissolving said injunction.

Farnham & Crum, for appellant. Brickell, Semple & Gunter, for appellee.

HARALSON, J. In the case of Ex parte Sayre, 95 Ala. 288, 11 South. 378, we held that an appeal does not lie from an order of a chancellor made in vacation discharging an injunction. According to that ruling this

case is not before us on appeal from the order discharging the injunction.

The decree of the chancellor, however, not only discharges, but dissolves the injunction which had been granted. Its language is, "Upon consideration thereof, * * it is now here ordered and decreed, that the said injunction be and the same is hereby discharged, as having been allowed improperly and in an improper case, and it is further ordered, that said injunction also be, and the same is hereby dissolved." The grounds upon which he dissolved the writ are not stated. Motions to dissolve proceed necessarily on (the one or the other, or both of) two grounds, either for want of equity, or on the coming in of the answer under oath, denying the allegations of the bill, on which its equity rests. Code, § 3532; East & West R. Co. v. East Tennessee, V. & G. R. Co., 75 Ala. 275. There was no answer filed here, and the consideration of the appeal must, therefore, be confined to the equities of the bill as appear on its face.

Coming to the legal principles upon which the question at issue is to be determined, we find little or no disagreement in the textbooks and adjudicated cases. Mr. Black, supported by a long array of adjudications from many of the states, lays it down, that any person who owes a duty to the state to pay the taxes on a particular tract of land, cannot become a purchaser at a sale of the property for such taxes; or, if he should, in form, buy at such a sale, he does not thereby acquire any right or title to the property better or stronger than what he had before, but his purchase is deemed merely as a mode of paying the taxes, and leaves the title in precisely the position it would have occupied, if the payment had been made before, instead of after the land was put up for sale. So, he proceeds, "One who has permitted lots which he holds to be sold for taxes and purchased by his agent, and who has obtained from the latter a transfer of the certificate of purchase, after the agent has been reimbursed, the amount paid upon his bid, by collecting the rents,"-or, he might have added, by being repaid such amount in money, by way of redemption of the title,-"and has procured from him the tax deeds, for the purpose of strengthening his title to the lots, does not thereby acquire a better title by the tax deeds." Black, Tax Titles, § 273, and authorities cited; Blackw. Tax Titles, §§ 566, 581.

It is everywhere conceded to be a legal and a moral duty every good citizen owes the state and the municipality in which he resides, to pay the taxes which are duly and legally assessed against his property. Without this, good government, and a due administration of law, in which every one is alike interested, cannot be maintained and enforced. The disqualification of one to purchase land at a tax sale, sold for the purpose of collecting the taxes assessed against it,

rests upon the principle that he is under a legal and moral duty to pay the taxes. If he cannot do this directly, by becoming himself the bidder at the sale, he ought not to be allowed, and cannot be, to acquire a valid title indirectly, by procuring another person to do for him what he cannot do himself,to act as the ostensible bidder at the sale, take the certificate of purchase and the tax collector's deed, and assign the title afterwards to the owner on his refunding the money and expenses, and thereby derive any advantage. Such an arrangement, as has been held, if not positively fraudulent is, at any rate, an attempt to evade the law, to which courts will not lend their countenance. The principle running through all the cases, says Mr. Burroughs, "is that when it is the duty of a party to pay the taxes, he cannot acquire a title founded on his own default. He cannot build a title on his own neglect of duty." In every such instance, the owner will be construed as intending to discharge his duty by relieving the estate from the incumbrances, by extinguishing a title under a sale his own tardiness and neglect of duty had made necessary. Burroughs, Tax'n, 352-354; Black, Tax Titles, § 276; Donnor v. Quartermas, 90 Ala. 169, 8 South. 715; Thorington v. City Council, 88 Ala. 548, 7 South. 363; Bailey's Adm'r v. Campbell, 82 Ala. 345, 2 South. 646; Jackson v. King, 82 Ala. 433, 3 South. 232; Johnston v. Smith, 70 Ala. 108; Frank v. Arnold, 73 Iowa, 370, 35 N. W. 453; Lindley v. Snell, 80 Iowa, 103, 45 N. W. 726; Varney v. Stevens, 22 Me. 334. The complainant, in filing this bill, relies on the principle, that whenever lands are properly sold, for unpaid taxes imposed on the lands themselves, the purchaser acquires the fee, (Jones v. Randle, 68 Ala. 258; Burroughs, Tax'n, § 122;) that a sale of such lands frees them in the hands of the purchaser from any and all liens thereon for delinquent taxes for former years, (2 Desty, Tax'n, 849; Thorington v. City Council, supra.) In the case last cited, it was held that a sale of land for unpaid taxes destroys the lien for prior unpaid taxes, of which no notice was given at the sale, and confers a clear title on the purchaser, if he bought in good faith, for his own benefit, and with his own money and not by fraud or collusion with the delinquent taxpayer; but, if the lands are redeemed by the delinquent, they again become subject to the lien for prior taxes. Let us then apply these principles to the facts of this case, as we find them averred in this bill.

For a better understanding of the law and the facts, it is proper to refer to two acts of the legislature, which have an important bearing, the one entitled, "An act to regulate the sale of real estate for unpaid municipal taxes in the city of Montgomery," approved February 17, 1885, (Acts 1884-85, p. 767,) the twelfth section of which provides, "that the certificate of the purchaser under

this act, shall authorize the purchaser, or his assignee, to enter upon and maintain ejectment for the possession of the premises sold, against the former owner; * and the owner * * * may redeem the same on the terms and conditions prescribed in section nine (of said act) at any time within two years from the time the purchaser enters upon or obtains possession of the property." The other is an act, "For the relief of parties whose lands have been sold for taxes," approved February 28, 1887, (Acts 1886-87, p. 91,) which provides, that in all cases where lands have been sold for the nonpayment of taxes, and purchased by the state, and when the title has never passed out of the state, the parties who own said lands, at the date of such purchase by the state, or their grantees or assignees, shall be permitted to redeem said lands at any time within one year after the passage of the act, upon the payment of the taxes due at the date of said sale, and the expenses of said sale, and the annual taxes from the date of said sale to the date of the redemption of said lands; that any person desiring to redeem lands under the provisions of the act shall make application in writing therefor, to the auditor of the state, and by complying with the terms prescribed therein, that the auditor shall make a deed to said lands conveying all the right, title and interest of the state in and to the same, to the party purchasing.

The case on its naked presentation of facts in the bill is, that complainant in the years, from 1873 to 1885, was the owner of the lands described in the bill and had failed for all these years to pay her taxes to the city of Montgomery. A bill was filed against her by said city in the chancery court of Montgomery, to have a lien declared on said lands for the payment of said unpaid taxes on them; that said court by its decree, declared a lien on said lands and ordered their sale, if said decree was not paid as directed; that the recorder of the city of Montgomery, proceeding, as we must presume, under said act regulating sales of real estate for unpaid municipal taxes of the city of Montgomery, ordered said lands sold for the taxes due the city for the year 1884, accruing subsequently to the taxes embraced in the decree of said chancery court, at which sale, Sallie G. Thorington became the purchaser, for the amount of the taxes, costs and expenses and received from the clerk of the city certificates of purchase of the respective lots which were sold. This sale and purchase, it is claimed, cut off and destroyed all liens and rights held by said city for taxes claimed to be due and delinquent before that time, which were included in said decree. Under the principles above referred to, the sale might have had the effect claimed for it; but unfortunately for such a claim, it is stated in the bill that complainant has since redeemed said lands from Mrs. Thorington, which redemption we hold, was but the discharge by complainant,

of a legal and moral duty, and had the effect, to relieve the estate from Mrs. Thorington's title, if it ever existed, by extinguishing her title under that sale, and subjecting the lands to the claim of the city for all of said delinquent taxes. The case stands, therefore, as if Mrs. Thorington had never bid for and received a certificate of purchase and deed from the city to said lands, and the complainant, as to this claim, is remanded to her former relations to the lands. The statements of the bill authorize the inference and indulgence of the fact, that Mrs. Thorington was procured to figure in the transaction as the agent of the complainant.

As to the sale by the auditor to said Flint, it may be said, on the averments of the bill, that his purchase was in the interest and for the benefit of complainant. He acted as the grantee, certainly, of Mrs. Thorington; for, while the bill fails, in terms, to state the date of complainant's redemption from her, it does state, that she "has redeemed the same (said lands) from said Thorington, and now holds the same under her said purchase of all the right, title and interest of the state of Alabama, through Charles L. Flint by deed as aforesaid from his heirs and devisees, freed from all the taxes, costs and charges now attempted to be set up and enforced by said city council."

Complainant, then, by refusal to pay her taxes necessitated a sale by the city. Mrs. Thorington as her agent and for her benefit bid at said sale, and received complainant's title, which was afterwards redeemed by complainant. While Mrs. Thorington was the apparent owner, she made default in the payment of the accruing taxes on said lands, to the state and county, and forced the state to sell them for the delinquent taxes, and after this, having gone through the form of a redemption from Mrs. Thorington, complainant redeemed the lands from the heirs of Flint, and now claims that she holds them freed from all the taxes of the city from 1873 to 1891, except for such as accrued in the year 1884. Flint's purchase, under the facts stated, we must hold, was in the interest and for the benefit of complainant. His title, was built on the defaults of complainant and her agent, Mrs. Thorington, and cannot be made to subserve the purposes for which it was intended,-that of freeing these lands from the just claims of the city on them for its taxes.

A chancery court will look through the forms with which transactions may be clothed, to their real substance, and to the intention of the parties, and will not willingly allow wrong and injustice to prevail.

The acts of the legislature to which we have referred, allowed the purchaser, in each instance, to take possession and control of the property purchased. So far as we are informed by the bill, Mrs. Thorington never took possession of said lands from complainant under the purchase, nor did said Flint

take possession of them, but complainant has remained in possession all the while. While these facts, if not true, are amendable defects, and would not, of themselves be allowed to determine the equities of the bill, on this appeal, yet, taken in connection with the other facts averred, they serve to strengthen the conclusion we reach. There was no error in the decree of the chancellor dissolving the injunction, and it is. affirmed.

POTTS et al. v. FIRST NAT. BANK OF GADSDEN.

(Supreme Court of Alabama. Feb. 7, 1894.) COMMON COUNTS-MONEY HAD AND RECEIVED.

Where one buys goods, agreeing, as part of the consideration, to pay debts of the seller, and converts the goods into cash, an action on the common counts for money had and received may be maintained against the purchaser by one of the creditors whom he agreed to pay.

Appeal from city court of Gadsden; John H. Disque, Judge.

Action by the First National Bank of Gadsden against Potts & Potts on the common counts for money had and received. Judgment for plaintiff, and defendants appeal. Affirmed.

W. H. Denson and J. L. Tanner, for appellants. Dortch & Martin, for appellee.

We

HEAD, J. The parties have argued this case upon briefs, and it is not insisted by appellants that the finding of the lower court on the disputed facts is wrong. have examined the evidence, and are not prepared to say, ourselves, that there is error in that regard. The contention of appellants is that, upon the case made by the appellee's evidence, a recovery cannot be had upon the common counts. The facts so shown are that Young & Herring, a partnership, being indebted to the plaintiff in the sum of $231, and to other parties, and being indebted also to appellants in a large sum, Young, with the consent of Herring, sold the stock of goods, etc., of the firm to the appellants, in consideration of which appellants paid him $1,000 in cash, and assumed and bound themseives to pay and discharge the outstanding debts of the partnership, including the discharge of their own claim, all aggregating $4,345.36, and the goods were delivered to appellants. It seems that the purchase was made for Herring, or with the view of their immediate resale to him; and on the same day he, Herring, executed to appellants a mortgage on the goods, to secure sundry notes cotemporaneously executed, aggregating $4,345.36, maturing at sundry times in the future. It was stipulated in the mortgage that Herring should remain in possession of the goods, and sell them out as agent of appellants, and account and pay over to them every month all proceeds of sales, which it seems was done. There was also

was

a general power of sale in appellants, after default in the payment of any of the secured notes; any surplus of the proceeds after paying the secured notes and expenses to be paid to Herring. The appellee's evidence also shows that, at the time of the transaction, itsclaims were produced by one of its officers or agents, and that Potts, acting for appellants, said they were all right. Appellants having refused to pay, this action brought, the appellee relying upon the count for money had and received. We realize the force of the argument against the maintenance of this form of action, upon the facts of this case, but under our decisions, by which we are governed, we are forced to hold the action well brought. Appellants, in consideration of their promise to pay the claims of appellee against Young & Herring, received goods to cover the amount. They converted the goods into cash, or treated them as cash. The case is not distinguishable, in principle, from Huckabee v. May, 14 Ala. 263, which has been many times cited by this court, and never departed from. Cullum v. Bloodgood, 15 Ala. 40; Hughes v. Stringfellow, Id. 326; Carter v. Darby, Id. 699; Hoyt v. Murphy, 18 Ala. 319; Sherrod's Ex'rs v. Hampton, 25 Ala. 658; Evans v. Carey, 29 Ala. 110; Stetson v. Goldsmith, 30 Ala. 602; Overstreet v. Nunn's Ex'rs, 36 Ala. 667; Webster v. Singley, 53 Ala. 211; Burkham v. Mastin, 54 Ala. 125; Henry v. Murphy, Id. 251; Dryer v. Lewis, 57 Ala. 555; Dimmick v. Register, 92 Ala. 460, 9 South. 79. Affirmed.

ASHFORD v. PREWITT et al. (Supreme Court of Alabama. Jan. 30, 1894.) ESCROW-DELIVERY TO ATTORNEY.

1. A deed may be delivered to the attorney of the grantee, in escrow, the delivery being accompanied by a writing explaining the condition on which delivery to the grantee depends.

2. Complainant, after delivering a deed in escrow for P., who had already given a deed of the property to defendant, obtained a decree against P. and defendant, declaring the title of the property in complainant. Thereafter, the event on which the deed was to be delivered transpired, and delivery was made. Held, that the decree was no bar to a claim under the deed, as the deed did not take effect till the happening of the event on which delivery was conditioned, and then inured to the benefit of defendant.

Appeal from chancery court, Lawrence county; Thomas Cobbs, Chancellor.

Suit by Caroline Ashford against Josephine Prewitt and others, to have enjoined several statutory real actions, in the nature of ejectment, for the recovery of the possession of certain lands, and for a decree declaring that the complainant was clothed with a paramount equity, which dominated the title of Mrs. Prewitt and those claiming under her. From a decree dismissing the bill, on final hearing, upon pleadings and proof, complainant appeals. Affirmed.

STONE, C. J. This litigation, in some of its forms, has been many times before this court. The land which has been the subject of the various suits is a tract of about 700 acres lying in Lawrence county, south of the Memphis & Charleston Railroad. The descriptive numbers of the land are shown in the transcript. For the purposes of this suit, we need go no further back than to the time when the title was in Thomas H. Ashford, husband of Caroline Ashford, appellant in this cause. Some time between 1855 and 1860, Thomas H. Ashford sold and conveyed these lands to Richard Prewitt; Caroline, his wife, joining in the conveyance. They conveyed by warranty deed, and Prewitt went into immediate possession under his purchase. Some question was raised, in some of the stages of the litigation, whether Prewitt paid to Ashford the purchase money of this land, but we think the proof satisfactorily shows its payment long before any question was raised as to the rightfulness of his title. We will show, further on, that although the title was taken and held in the name of Thomas H. Ashford, the husband of Caroline, she claims that it was paid for with her money, part of the corpus of her statutory separate estate, invested by her husband and trustee in the land, and the title improperly taken in his name. Against this claim and attempt of Mrs. Ashford to trace her money into the land, and to fasten an equity upon it, both Richard and Josephine Prewitt separately plead and set up that they are bona fide successive purchasers of the land from the said Thomas H. without notice of the equitable claim of said Caroline. This plea is in form sufficient, its averments are proved, and we think there is a failure of proof to trace notice to either of them. We have made these statements for the purpose of slabbing off these inquiries, as not presented by the present record. Prewit v. Wilson, 103 U. S. 22.

In 1871 Mrs. Caroline Ashford, then the widow of Thomas H. Ashford, instituted a suit in chancery against the administrator of her deceased husband, against Richard Prewitt, Josephine Prewitt, and certain creditors of Richard Prewitt, the purpose of which was to have it declared and decreed that the lands in controversy, together with other lands, the title to which had been taken in the name of Thomas H. Ashford, had been purchased by him with moneys which were of the corpus of her statutory separate estate, and were rightfully her property. Richard Prewitt's defense was that he had bought and paid for the lands, and received a conveyance from Ashford and wife, without notice that her money had been used in the purchase. Josephine, who had title from Richard Prewitt, supplemented this defense

with the averment and plea that while she was single, in consideration that she would marry the said Richard, he, in 1866, conveyed said lands to her by warranty deed, and that thereupon, and in consideration thereof, she did marry the said Richard, and became his wife, and that not until long afterwards had she any knowledge or notice that the moneys of said Caroline had purchased the lands. The administrator of one Liles, a creditor of said Richard Prewitt, had instituted proceedings to subject the lands in controversy to the payment of a debt of said Richard. The ground of his contention was that the deed from Richard to Josephine Prewitt was fraudulent. A decree had been rendered dismissing the bill, and the case was pending on appeal in this court. In this condition of things, an agreement in the nature of a compromise of the conflicting claims to the lands involved in this suit was entered into between Mrs. Ashford and the Prewitts. That agreement, however, in no way affected the suit by Liles to subject the land to the payment of his claim. The agreement was entered into in November, 1875, and consisted of the following: Mrs. Ashford signed a quitclaim deed to Richard Prewitt, duly attested, which contains this clause: "In consideration of said alleged payment, [payment of the purchase money by Richard Prewitt to Thomas H. Ashford,] and other considerations me thereunto moving, I have and do by these presents convey all the right, title, and interest I have in said above-described lands south of said line of railroad [the lands here sued for] to said Richard Prewitt." This deed was not delivered to Richard Prewitt, and was not intended to be delivered to him, except on a future contingency. It was delivered to J. B. Moore in escrow, accompanied by the written power and authority of Mrs. Ashford, which was also signed by her, and properly witnessed. Its terms were, and are here copied: "I have this day executed a quitclaim deed to certain lands in Lawrence county, Alabama, -705 acres lying south of the Mem. & Ch. R. R.,-to Richard Prewitt. Said lands are described in said deed. I have delivered said deed to J. B. Moore, as an escrow, to be delivered to said Prewitt upon the happening of the following contingency: If a certain suit now pending in the supreme court of Ala.-Liles' Adm'r v. said Prewitt et al.-is affirmed, (decided in favor of Prewitt,) said Moore is to deliver said deed to said Prewitt; otherwise, he is to hold subject to my order." One of the terms of the agreement was that the Prewitts were to desist from all further defense to the said suit of Mrs. Ashford for the recovery of other lands, in which she was seeking to fasten the same equity she asserted in the lands involved in this case. There is a contention that Prewitt, as one of the terms of the compromise, agreed and promised to furnish certain important testimony