the opinion of the decree on this subject the, 3. Homestead following:

150(1)-Persons held necessary parties to widow's suit to have land set apart to her as homestead,

Heirs or next of kin of deceased husband suit to have land set apart to her, absolutely, are proper and necessary parties to widow's in fee simple, as homestead, under Code 1907, § 4198.

4. Homestead 150(1)-Widow's bill to set apart homestead held sufficient to show that she and son were deceased's only heirs.

"Before, or at the time, this note and mortgage were executed, Johnson agreed to make the advances at 8 per cent. per annum, and Driver agreed to pay him therefor 8 per cent. per annum on such loans. Since that time no further agreement has been had between the parties as to the rate of interest to be charged and paid. Johnson cannot collect nor can Driver be required to pay him more than the rate agreed upon. If in entering up in his In widow's suit to set apart homestead, account against Driver on his book Johnson averments that deceased left widow, no minor has charged Driver with interest at a greater children, and one son, and that he died intesrate than that agreed on it is his ex parte tate, leaving complainant and one son survivact and is an improper charge and will not being him, held sufficient on demurrer to show allowed. Under the terms of their agreement. that they were his only heirs. Driver is liable to Johnson for the different items of advances made with interest at the rate of 8 per cent. per annum from the date each advance was made, less a credit of all payments made worked out according to the rule of partial payments, which rule is followed by the court in its ascertainment of the account between the parties."

The facts found and the decree rendered thereon by the trial court, when the witnesses are examined orally in his presence, have the effect and weight of the verdict of a jury. The decree, based on these facts, should not be changed or disturbed by us, unless plainly wrong. It is fully sustained and supported by the evidence. Christie v. Durden, 205 Ala. 571, h. n. 1, 88 South. 667; A. G. S. R. Co. v. Longshore, 209 Ala. 227, h. n. 3, 96 South. 64.

The decree is free from error, and is affirmed.

5. Homestead 150(1)—That parties to widow's suit to set apart homestead were all of deceased's heirs and next of kin held sufficiently averred.

In widow's suit to set apart homestead, bill averring that grantee died intestate, leaving widow and children named, "who are his next of kin and heirs at law," stated with sufficient certainty under demurrer that such persons, who were parties to cause, were all the heirs and all the next of kin of deceased.

6. Quieting title 7 (2)-Conditions enabling one to sue to remove recorded deed as cloud on title stated.

Under Code 1907, §§ 5443, 5444, widow in actual or constructive possession of land under claim of ownership denied by persons reputed to claim under recorded deed from her and deceased husband may sue in equity to remove it as cloud on title.

7. Quieting title 27-Court of equity has original jurisdiction to cancel recorded conveyances as cloud on title.

Court of equity has original jurisdiction to cancel conveyances of record, which are cloud on title to realty, and relieve against conveyances of realty obtained by fraud.

8. Quieting title 7 (2)-Deed delivered to grantee before death of both grantors in violation of agreement held cloud on title.

Deed delivered to grantee after death of one grantor in violation of agreement that escrow holder should deliver it after death of both grantors, if grantee complied with agreement, held removable in equity as cloud on ti

tle.

9. Equity 148(4)—Bill seeking alternative or inconsistent relief as to same property not multifarious.

Bill seeking alternative or inconsistent relief as to same property between same parties is not multifarious under Code 1907, § 3095.

10. Equity 150(1)-Bill to rescind contract, remove deed as cloud on title, and set apart homestead held not multifarious because all parties not interested in all matters in controversy.

Bill to rescind contract, executed by complainant and her deceased husband, reciting conveyance of realty in consideration of serv

(100 So.)

ices to be rendered by grantee, to have deed, is recorded, surrendered, and removed as a executed by them pursuant thereto removed as cloud on the title to this land of complaincloud on title, and, to set apart land as home-ant; and, further, to have this 120 acres of stead, held not multifarious, because deceased's land set apart to her as exempt from adminand grantee's widows and heirs, all of whom

were properly made parties, were not all in-istration, as homestead, and to have the title terested in all matters of controversy; each to it vested in her absolutely, as it was all being interested in some matters involved in the land owned by her husband in this state single controversy as to title to and ownership at the time of his death, and did not exceed of land. in value $2,000, and she is his widow, and

11. Contracts 311-Contract to render per- he left at his death no minor child or chil sonal services in consideration of conveyance dren. The bill of complaint was amended held terminated by and subject to cancella-several times; as last amended demurrers tion on grantee's death. of some of the defendants to it were sustained by the court. The complainant appeals from that decree, and assigns it as error.

Contract reciting conveyance of realty by deed placed in escrow for delivery to grantee at grantors' deaths, if grantee's agreement to move in house with them and take charge of premises and stock were complied with, held terminated by, and subject to cancellation on, grantee's death before that of surviving grantor, as calling for personal services incapable of performance by his personal representatives or heirs.

12. Cancellation of instruments

37(4)-Bill to cancel contract held not demurrable for failure to offer to place defendants in statu

quo.

Widow's bill to cancel contract, as terminated by death of one agreeing to render per sonal services to complainant and her deceased husband in consideration of delivery of deed to him at their deaths held not demurrable for failure to offer to place grantee's widow and heirs, against whom suit was brought in statu quo; nothing being due them from complainant under contract and any equity being presentable by their answer.

13. Appeal and error 1175(7) - Decree overruling demurrers improperly sustained below will be entered by Supreme Court. Where demurrers to bill were improperly sustained, decree overruling them will be entered by Supreme Court.

Appeal from Circuit Court, Perry County; S. F. Hobbs, Judge.

Bill in equity by Cassie Frazier against Lula Frazier and others, for rescission of a contract, etc. From a decree sustaining de

On August 24, 1908, the complainant and her husband, John Frazier, entered into a written contract with J. M. Frazier, which contains the following covenants and stipulations:

"That John and Cassie Frazier of the first part has this day deeded their home and land to said J. M. Frazier, said to contain one hundred and twenty acres, upon the following conditions, that said J. M. Frazier agrees to move in the house with said John and Cassie Frazier, and take charge of the land and premwith the understanding that said John and Casises, also stock and provide feed for the same, sie Frazier have the right to use the horse and buggy at their pleasure. Said J. M. Frazier agrees to furnish the wood, water and the necessary provisions and clothing and pay all doctors bills and burial expenses, for the said John and Cassie Frazier, and at their death

said J. M. Frazier is to have all the personal property owned by John and Cassie Frazier. Now it is the understanding that if the said J. M. Frazier fails to comply with this agreement, then it is understood that the deed given him shall be null and void. Said deed is to [be] placed in the hands of J. B. Morland to hold, and if the said J. M. Frazier complies with the agreement at the death of the said John and Cassie Frazier said J. B. Morland is

to turn over to the said J. M. Frazier the deed to the land deeded to him by John and Cassie Frazier."

John Frazier died intestate in April, 1912,

murrer to the bill, complainant appeals. Re leaving no minor child or children, and this

versed, rendered, and remanded.

was all the land owned by him at the time in this state; it did not exceed in area 160

R. B. Evins, of Birmingham, and A. W. acres, nor in value $2,000. He was a resident Stewart, of Marion, for appellant.

citizen of the state, residing on this land as Clifton C. Johnston, of Marion, for appel- his homestead at the time of his death. lees.

MILLER J. This is a bill in equity by Cassie Frazier against Lula Frazier, Emma Yeager, Sadie Horn, Sudie Fisher, and Sidney Frazier, seeking to have a contract rescinded, which was made by complainant and her husband, now deceased, with J. M. Frazier, now deceased, which involves 120 acres of land; it also seeks to have a deed executed by complainant and her husband, John Frazier, deceased, to J. M. Frazier, conveying this 120 acres of land to him, which

The bill alleges the deed conveying the land to J. M. Frazier was executed by complainant and her husband and delivered to J. B. Morland to be held in escrow by him under the terms of the contract, and Morland in violation of his duty delivered the deed to J. M. Frazier on January 7, 1914, after the death of John Frazier, and it was recorded in the probate office of Perry county, Ala., the county in which the land is located.

[1] J. M. Frazier died on March 18, 1920. The complainant avers "she had no knowledge of the delivery and record of the deed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

- until after the death of J. M. Frazier." This, equity to settle the title and clear up all bill was filed on February 19, 1921. The doubts or disputes concerning the same. Seccomplainant in one aspect of the bill is seek- tions 5443, 5444, Code of 1907. ing relief on the ground of fraud in the delivery, receiving, and recordation of the deed. It was commenced within a year after the discovery by complainant, the aggrieved party, of the facts constituting the fraud; and it is not barred by statute, under the facts averred in the bill. Section 4852, Code 1907.

[5] The bill avers that J. M. Frazier died intestate on March 18, 1920, "leaving surviving him a widow, said Lula Frazier, and the following children Mrs. Emma Yearger, Mrs. Sadie Horn, Mrs. Sudie Frazier Fisher, who are his next of kin and heirs at law." These persons are parties to this cause, and this averment states with sufficient certainty under demurrer that they are all the heirs and all the next of kin of J. M. Frazier, de-adjudication of this question is necessary to ceased. Howison v. Oakley, 118 Ala. 215, 245, headnote 20, 23 South. 810.

(100 So.)

presented by the bill in regard to the title to this land. They are not all interested in all the matters of controversy in regard to it, but each is interested in some of the matters involved in this controversy over the title and ownership of this land. This court in Truss v. Miller, 116 Ala. 505, 22 South. 866, wrote:

“When, as in the present case, the objection is, that distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others."

In Stone v. Knickerbocker Life Ins. Co., 52 Ala. 589, 592, we find the following:

"It is a general rule in courts of equity, that a bill is not multifarious which unites several matters distinct in themselves, but which together make up the complainant's equity and are necessary to complete relief."

In Kingsbury v. Flowers, 65 Ala. 479, 483 (39 Am. Rep. 14) Chief Justice Brickell, speaking for the court, approvingly quoted Vice Chancellor Sir John Leach in Salvidge v. Hyde, 5 Madd. 138, as follows:

"If the object of the suit be single, but it happens that different persons have separate interests in distinct questions, which arise out of that single object, it necessarily follows that such different persons must be brought before the court, in order that the suit may conclude the whole subject."

be performed personally by J. M. Frazier? These are vital questions to be considered in determining whether the contract terminated, and whether complainant is justified in contending and claiming the contract was canceled when J. M. Frazier died. In 13 Corpus Juris, p. 644, § 719, the following rule is stated, which was quoted with approval by this court in Pope v. Dickerson, 205 Ala. 594, 89 South. 24:

"Contracts to perform personal acts are considered as made on the implied condition that the party shall be alive and shall be capable of performing the contract, so that death or disability will operate as a discharge."

This principle is thus stated in 3 Elliott on Contracts, p. 222, section 2040;

"There is said to be a legal presumption that the parties to a contract bind not only themselves, but their personal representatives. Where, however, the contract shows that it was the intention of the parties that the service should be performed by the contractor in person, then the contract will terminate with

the death of the contractor."

The first condition to the conveyance of the land to J. M. Frazier, mentioned in the contract, was "that said J. M. Frazier agrees to move in the house with said John and Cassie Frazier and take charge of their land and premises, also stock." The contract contemplates a close personal relationship between the parties, they were all to reside together in the same house, on the same premises, until the death of John and Cassie Frazier.

Each party mentioned above has an inter-This called for the personal presence of and est in some of the matters involved in this the protection of them in the person of J. M. cause. All the matters involved are connect- Frazier in the home during the life of each, ed with and relate to the single object, the which was to be his at their death, if he pertitle to and ownership of this 120 acres of formed his part of the agreement. He was land, the same property and the only proper- to take charge of their land and premises in ty involved in the cause. Different persons, person. Under the very nature of the conparties to the cause, "have separate inter- tract it is evident the parties contracted on ests in distinct questions, which arise out of the basis that it was to be performed in perthat single object," the title to and owner- son by J. M. Frazier, and they contracted on ship of this land, and all should be "before the continued existence of the person of J. the court in order that the suit may conclude M. Frazier during the lives of John and Casthe whole subject." The bill is not multifari- sie Frazier. ous.

Authorities supra.

The contract was based on personal acts The bill describes the land, 120 acres, by to be performed by J. M. Frazier; it was government numbers, that was owned by breached by his death, and the deed in esJohn Frazier on the date of the contract. It crow was not to be delivered to him until sufficiently appears from the averments that the contract was fully performed by him. this was all the land owned by him in this The nature of the contract is of that personstate at the time of his death, and that the al character which justifies complainant in contract was in regard to this land; the deed seeking, and the court-if the facts alleged held in escrow by Morland describes and con- are true-in granting its cancellation on acveys this same land to J. M. Frazier, and it count of the death of the contractor, J. M. was occupied as a homestead by complainant | Frazier Pope v. Dickerson, 205 Ala. 594, and her husband at the time of his death. 89 South. 24; Mooney v. Mooney, 208 Ala. [11] Was the contract necessarily terminat- 287, 94 South. 131; Russell v. Carver, 208 ed, discharged, by the death of J. M. Frazier, Ala. 219, 94 South. 128, and authorities subefore the death of complainant? Was it pra.

capable of being performed by his personal [12] The appellees insist, if the contract representatives or heirs? Was it the inten- was terminated by death of J. M. Frazier, tion of the parties that the services should then the bill is demurrable because it fails

ANDERSON, C. J., and SAYRE and follows form No. 20, called malicious proseGARDNER, JJ., concur.

2. Malicious prosecution 21 (1)—Advice of missible in reply to such defense. The jury counsel complete defense.

3. Malicious prosecution 22-Advice of and insisted on by the appellant in his brief magistrate not complete defense.