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(100 So.) liability as a partner. It was therefore er- | 3. Intoxicating liquors w251 – Proof that ror to give, at defendant's request, charge 3. claimant's relatives in possession of condemnIt excluded the inference that might be ed automobile had bad reputation held comdrawn from the evidence---that defendant

petent. held himself out generally as a partner.

In proceedings to condemn automobile used That is to say, that he was estopped from in transporting prohibited liquors, it was comdenying (A) that he did not know he was be petent for state to show that claimant's brothing held out by Vann as a partner, or (B) | general reputation of being violators of pro

ers, who had custody and possession of car, had that plaintiffs' agent making the sale did not hibition laws. deal with the partnership, in taking the order, on the faith that Wilson was a member 4. Appeal and error com 1050(1) --Claimant of

condemned automobile held not prejudiced by thereof. That sales agent (Riddle) of plain

answer to question as to whether he objected tiff had the right to act in the premises, to unlawful use of car.

Claimant of automobile, seized while being what statements Wilson had made to him.

used by his brothers for transporting prohibited [16] For the purpose of another trial, we liquors, held not prejudiced by testimony, in may add that proof of a partnership, and answer to state's question as to whether he who compose it, must be made, as other ma-objected to brothers' use of car, that he had terial facts are proved, by conduct, control, not done so because matter bad never been conversation, or other relevant facts showing brought up between them." the relation, or that a person has permitted himself to be trusted and treated as a partner,

Appeal from Circuit Court, Jefferson Counmay be shown as we have indicated. Such ty; J. C. B. Gwin, Judge. are among the pertinent questions by which

Bill in equity by the State of Alabama, partnership liability is established. Alexan- on the relation of Ben G. Perry, Deputy der v. Handley, Reeves & Co., 96 Ala. 220, Solicitor of Jefferson Circuit Court, to con11 South. 390; Rabitte v. Orr, 83 Ala. 185, demn as contraband and have forfeited a 3 South. 420; Wright v. Powell, 8 Ala. 560; five-passenger Ford automobile, seized while Peck v. Lampkin, 200 Ala. 132, 75 South. 580; being used in the illegal transportation of 30 Cyc. 415, 416.

prohibited liquors. From a decree of conThe judgment of the circuit court is re demnation, R. L. Bearden, as claimant of versed, and the cause is remanded.

the car, appeals. Affirmed. Reversed and remanded.

Pinkney Scott, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., O. B. CorneANDERSON, C. J., and SOMERVILLE lius, Asst. Atty. Gen., and Ben G. Perry, and BOULDIN, JJ., concur.

Deputy Sol., of Bessemer, for appellee.

SOMERVILLE, J. [1] On the evidence adduced, the trial court found that the claimant, R. L. Bearden, was not the owner of the condemned automobile-his alleged pur.

chase of it from his brother being simulated BEARDEN V. STATE ex rel. PERRY.

merely, or afterwards concocted; and that, (6 Div. 11.)

in any case, the claimant was chargeable (Supreme Court of Alabama. April 17, 1924. with notice of the unlawful use which would Rehearing Denied May 15, 1924.) probably be made of the car by his brothers,

its bailees. On these issues the burden of 1. Intoxicating liquors em 251-Burden of prove proof was on the claimant. State y. One ing bona fide purchase of condemned automo. bile and want of notice of probable unlawful Lexington Automobile, 203 Ala. 506, 84 South. use by bailees is on claimant.

297; State v. Crosswhite, 203 Ala, 586, 84 Burden of proving that alleged purchase of South. $13; One Buick Automobile v. State, automobile, seized while being used in illegal 204 Ala. 428, 85 South. 739. transportation of prohibited liquors by alleged

We have examined the testimony, which sellers, was not merely simulated or afterwards was heard orally before the trial court, concocted, and that claimant was not charge- and think it was sufficient to support the able with notice of probable unlawful use by conclusion of the court on the facts. Cerseller and another as bailees, was on claimant.

tainly it fails to show any diligence what

ever on the claimant's part to prevent the 2. Intoxicating liquors Om 251-Proof of claim- unlawful use of the car. State v. Crossant's residence in county during month in which automobile was seized held admissible. white, 203 Ala. 586, 84 South. 813. In proceedings to condemn automobile used

[2] It was competent for the state to show in transporting prohibited liquors, it was com- that the claimant was living in Jefferson petent for state to show that claimant was liv. county. Ala., during the month of April, ing in county wherein car was seized during 1923; the car having been seized in the act month in which it was seized.

of transporting liquor in that month. CmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexog

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[3] It was competent for the state to show, An execution in favor of the Brock Candy also, that the claimant's two brothers, Ro- Company being levied upon certain real esland and Rube, who had the custody and tate of I. Elson, a claim of homestead expossession of the car, had the general repu-emption was interposed. On trial of the contation of being violators of the prohibition test of homestead there was judgment for laws. State v. Crosswhite, supra; Oakland defendant, and plaintiff appeals. Affirmed. Automobile Co. v. State, 203 Ala. 600, 84

Motley & Motley, of Gadsden, for appelSouth. 839; State v. Leveson, 207 Ala. 638,

lant. 93 South. 608.

Goodhue & Lusk, of Gadsden, for appel[4] The claimant was not prejudiced by

lee. his answer to the state's question whether he objected to his brothers' use of the car ; his answer being that he had not objected be

BOULDIN, J. This is a contest of claim cause the matter had never been brought up for homestead exemption. The facts are not between them.

in dispute, and may be thus summarized: We find no error for reversal of the de- The property, a house and lot in the city of cree of condemnation, and it will be affirmed. Gadsden, has been continuously occupied by Affirmed.

the debtor as his homestead since 1916. The

value is $3,500. In March, 1922, the plainANDERSON, C. J., and THOMAS and tiff obtained a judgment against the debtor BOULDIN, JJ., concur.

and caused it to be duly registered. At that
time the property was subject to two valid
mortgages, both superior to the homestead
right, one for $1,900 and one for $650. In
October, 1922, the debtor, desiring to pay off

the senior mortgage negotiated a loan of $1,-
BROCK CANDY CO. V. ELSON.

800 from a third person for that purpose, to (7 Div. 430.)

be secured by a first mortgage on the same (Supreme Court of Alabama. · April 10, 1924. property. To that end the holders of the

Rehearing Denied May 15, 1924.) second mortgage agreed to take a new mort1. Homestead om 66 — in determining home. Both these new mortgages were executed of

gage made subject to this first mortgage. stead exemption incumbrances deducted from value of whole interest.

date November 1, and filed for record NoUnder Code 1907, § 4160, if the interest vember 4, 1922. Thereupon the old senior of a homestead claimant is subject to mortgage mortgage was paid off, indorsed satisfied in or other incumbrances, the amount of such full, and surrendered on November 4, 1922. incumbrance must be deducted from the value The second mortgage was indorsed satisfied of his entire interest in fixing the value of in full and surrendered November 3, 1922. the property as his homestead, the whole being The entire matter of satisfying the old mortexempt if the balance after such deduction is gages, making and recording the new ones, less than $2,000.

was by several contemporaneous acts, all 2. Exemptions Ow76-Judgment lien never at one general transaction. Thereafter the taches to property exempt from execution.

plaintiff raised execution on the registered Judgment lien under Code 1907, 88 4156 judgment, and levied upon the property. The and 4157, never attaches to property exempt debtor filed his claim of homestead exempfrom execution.

tions. The plaintiff contested on the ground 3. Fraudulent conveyances 52(1) - Home- that the claim was excessive.

stead interest may be alienated notwithstand The trial court sustained the claim of the ing judgment against owner.

defendant debtor. Hence this appeal. A judgment debtor may, notwithstanding

The point made by appellant is that the the ju ent against him, convey or mortgage lien of the registered judgment is superior at pleasure his homestead interest under Code to the mortgages thereafter given and re1907, § 4160.

corded; that, the pre-existing mortgages 4. Homestead Om66Judgment lien held not to having been satisfied and canceled, the ex

have attached to homestead interest through cess value of the lands over $2,000, the discharge of prior mortgages and execution homestead exemption, is now subject to of new.

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plaintiff's judgment. Where two new mortgages executed by the

[1] The homestead right is a favored one owner of a homestead to take the place of pre: in Alabama. It is safeguarded by constituvious mortgages took effect contemporaneously with or prior to the discharge of such old tional and statutory provisions. It is part mortgages, and owner's interest after deduct of the public policy of the state to protect ing incumbrances never exceeded $2,000, did the shelter and abiding place of the citizen not attach.

and his family, within the limits and area

defined, until alienated, waived, or abanAppeal from Circuit Court, Etowah Coun- doned in the manner fixed by law. The ty; Woodson J. Martin, Judge.

homestead of every resident, to the extent of

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

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(100 So.) any interest he may have therein, not ex-, tion here is not one of priority of liens. The ceeding $2,000 in value or 160 acres in area, question is the existence of a judgment lien is exempt from levy and sale under execu- vel non. Our conclusion is that no lien ever tion or other process for the collection of attached to this property by virtue of plaindebt. Code 1907, § 4160. If the interest of tiff's registered judgment. The judgment of such resident is subjeet to mortgage or other the court below was in accord with these incumbrance, the amount of such incum- views, and is affirmed. brance must be deducted from the value of Affirmed. his entire interest in fixing the value of the property as his homestead. If the value of

ANDERSON, C. J., and SOMERVILLE the property, or his interest therein, after and THOMAS, JJ., concur. deducting the incumbrance, does not exceed $2,000, it is wholly exempt. Franklin v. Comer, 170 Ala. 229, 54 South. 430. A judgment of a court of record duly registered creates a lien on all the property of the de HOGG et al. v. FRAZIER. (4 Div. 998.) fendant "subject to levy and sale under ex

(Supreme Court of Alabama. May 1, 1924.) ecution" in the county where filed. Code, 1907, $$ 4156, 4157.

1. Landlord and tenant cm 157(1)-Lease, re. [2] Potentially this is a continuing lien, quiring lessee to fence, held not to require and attaches to any property subject to exe

fence where there was existing line fence. cution coming to the hands of the defendant Lease, requiring lessee to inclose leased within a period of 10 years from the date of lands with good wire fence, did not require the judgment. Such lien, however, never at construction of another fence on boundary taches to property exempt from and not sub- where there already was good line fence. ject to execution on such judgment. The 2. Landlord and tenant en 159(1)-Testimony judgment lien statutes work no change in that lessee had kept up line fence held propthe right of exemptions. As to exempt prop

erly admitted in action for failure to fence. erty, the debtor's right is as though there In lessors' action for lessee's breach of conwere no judgment or execution lien.

tract to fence, held, that it was not error to [3] So long as the debtor's homestead is permit lessee to show he had kept up existing within the protection of the exemption given line fence, especially as testimony to same efby law he may dispose of it as though there fect had previously been received without ob

jection. were no judgment. He may, if unmarried, or with the consent of the wife duly ac- 3. Appeal and error 1057(2)-Exclusion of knowledged if married, convey or mortgage

testimony as to lessors' ownership not quesit at pleasure; may sell it or give it away.

tioned by lessee held not prejudicial. Creditors have no claim upon it, nor interest

Where lessors' joint title to land and their in it

, and suffer no legal injury by any dis- right to sue lessee was not questioned, and tesposition he may make of it. Steiner Bros. v. ted, exclusion of further evidence as to owner

timony as to such ownership had been admit-
Berney, 130 Ala. 289, 30 South. 570; Pollak ship held not prejudicial to lessors.
F. McNeil, 100 Ala. 203, 13 South. 937.

[4] These well-settled principles are con Appeal from Circuit Court, Covington
clusive of the case at bar. At the time the County; Arthur B. Foster, Judge.
judgment was registered, the value of de-
fendant's homestead, less the incumbrances,

Action for breach of contract by J. P, Hogg was under $2,000. It has so continued to and another against W. L. Frazier. Judg. the time of the levy and claim of exemption. ment for defendant, and plaintiffs appeal. The satisfaction of the old mortgages and

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Affirmed. the making of the new was contemporane

E. O, Baldwin, of Andalusia, for appel. ous. The new incumbrances became effec- lants. tive on the same day, if not before the day, A. R. Powell, of Andalusia, for appellee. the old ones were discharged. In case of a homestead of this kind, the judgment lien GARDNER, J. Suit by appellants against can never attach unless at some time the in- | the appellee to recover damages for a breach cumbrances are so reduced in amount that of a certain written contract entered into the value of the debtor's interest in the between the parties in October, 1915, for property, after deducting incumbrances, ex- the rent of lands therein described, owned

by the appellants, and rented to the appellee There is no need to review the authorities for a term of five years. In addition to the presented on the question of priority of stipulated amount of rent to be paid each liens, the right of a junior lienholder upon year the lessee agreed to make certain imsatisfaction of the superior lien, nor the provements—among them to inclose all the right of subrogation, equitable or

conven- land with a good wire fence. A recovery of tional

, in favor of one who advances money damages for a breach of this particular stipto remove the senior mortgage. The ques-ulation is sought in counts 3 and 4. No ques

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

e 1

.

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ceeds $2,000.

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tion is presented upon those counts resting question asked the witness Jordan as to upon a breach of other stipulations, and they whether or not the plaintiffs owned-this land may be laid out of view.

together. The defendant insisted that he had fully The remaining assignment of error relates met all the requirements of the contract, to the action of the court in overruling the while the evidence for the plaintiffs was to motion for a new trial based upon the ground the contrary. The issues thus presented the verdict was contrary to the overwhelming were left to the jury for determination, re weight of the evidence. The rule by which sulting in a verdict for the defendant, from the court is governed in questions of this which the plaintiffs have prosecuted this ap character is too well established to require peal.

discussion or citation of authority. The evi[1] It is insisted by appellants that the dence was in sharp conflict, and a discussion plaintiffs were entitled to the affirmative in- of it here would serve no useful purpose. struction for recovery on account of a breach Suffice it to say that upon a careful examinaof the stipulation for inclosing the land with tion we are persuaded the judgment of the a wire fence, for the reason the evidence court below in this respect should not be showed without dispute the defendant had here disturbed. not constructed a fence, on that part of the Finding no reversible error in the record, land which represents the dividing line be- the judgment will be affirmed. tween the plaintiffs' property and that of one Affirmed. McIntosh.

The defendant's evidence tended to show ANDERSON, C. J., and SAYRE and MILthere was a good wire fence already con- LER, JJ., concur. structed on the dividing line between the plaintiffs' property and that of McIntosh, and that it was a line fence, to which the defendant connected the fence which he con

ERSWELL Y. FORD. (6 Div. 981.) structed.

The court instructed the jury in his oral (Supreme Court of Alabama. April 10, 1924. charge that, if this fence was on the line, Rehearing Denied May 15, 1924.) built there as a line fence, and already there as a part of the inclosure of this particular

1. Vendor and purchaser 3(4)-Contracts land, then it would not be necessary for the

held agreements to convey lands, and not

options. defendant, in order to meet the requirements

Contracts granting options to purchase of the contract, to inclose the land—to build

realty for stated sum by certain date, with proanother fence at that particular place. The visions for cancellation by failure to pay aljury were further instructed, however, that, ditional sum for option after approval of title if this fence belonged to Mcintosh, built by or amount of mortgage when due, or to exerhim entirely upon his own land, it would cise right, and for crediting amounts paid on not be a line fence, and would not suffice to purchase price and execution of deed after conmeet the requirements of the contract. Upon ditions were met, held agreements to convey that question the evidence was in dispute, lands, not mere options. and it is not insisted that the court commit- 2. Brokers Om78-Bill for commissions held ted any error in so instructing the jury. not prematurely filed.

Manifestly, if a good wire fence had al Bill to recover commissions for sale of ready been built as a line fence, inclosing the realty, which defendant, in violation of expremises on that side of plaintiffs' property, clusive agency contract with plaintiff, agreed no occasion arose for the construction of an to convey to another by contract, executed other fence upon the same identical line, and September 10, 1919, and expiring only few days such would not have been demanded under after contract with plaintiff, held not prema

turely filed on September 18, 1919. the terms of the contract entered into. [2] Nor was there error in permitting the

Appeal from Circuit Court, Jefferson Coundefendant to show that he kept up the line ty; Hugh A. Locke, Judge. fence while he was there, and, indeed, at the time this objection was interposed the wit

Bill in equity by C. W. Ford against Cathness T. E. Frazier, for the defendant, bad erine Erswell and others, to recover compreviously testified, without objection, to the missions for the sale of real estate and for same effect.

discovery. From a decree for complainant [3]. Plaintiffs' title to the land, and their against respondent Erswell, she appeals. Afright to prosecute this suit jointly, was not

firmed. questioned by the defendant, and their joint Exhibited with the answer of the respondownership and the fact they rented this ent appellant is an instrument dated Septemplace together to the defendant was testified ber 10, 1919, granting and conveying to Louis to without objection. There was, therefore, | Pizitz Dry Goods Company for a recited conno prejudicial error committed against the sideration in cash of $10,000, an option to plaintiffs in sustaining the objection to the purchase the property involved in the suit

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

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(100 So.) for $170,000, on or before January 23, 1923. , To such a hearing the rule announced in It is provided that the second party shall | Hackett v. Cash, 196 Ala. 403, 72 South, 52, hare ten days within which to approve title, has been applied in courts of equity. Anand if approved shall pay an additional sum drews v. Grey, 199 Ala. 152, 74 South. 62; of $10,000 for the option granted. Further, Ray v. Watkins, 203 Ala. 683, 85 South. 25 ; that the second party shall pay when it ma- McSwean's Case, 204 Ala. 663, 86 South. 646; tures a mortgage on the property for $45,000 | Brassell v. Brassell, 205 Ala. 201, 87 South. due September 1, 1920, as a further consid- 347; Hodge v. Joy, 207 La. 198, 92 South. eration of the option, or, if the second party 171. However, we have carefully examined elects to exercise the option before maturity this evidence on which the final decree is of the mortgage, shall at that time pay the rested, and are convinced that the decree is mortgage. It is provided that failure to pay correct. When the provisions contained in either the sum of $10,000 after approval of the contract, coupled with an interest in prætitle or the amount of the mortgage when senti, subject to be defeated by conditions due, or failure to exercise the right, cancels contained therein, dated September 10, 1919, the option ; but that if these conditions are to expire January 3, 1923, and the contract, met and the second party exercises the op- coupled with an interest in præsenti, subject tion, the amounts so paid, with interest, shall to be defeated by conditions therein conbe credited upon the purchase price.

tained, dated September 27, 1919, to expire Another instrument exhibited with re January 3, 1923, are considered, they were spondent's answer, dated September 27, 1919, agreements for or to convey lands, and were recites that, for a consideration $20,000, the not mere options. Lauderdale Power Co. v. respondent and others grant and convey to Perry, 202 Ala. 394, 80 South. 476; Bethea Louis Pizitz Dry Goods Company the right v. McCullough, 195 Ala. 480, 70 South. 680. and option to purchase the property in ques. These lands were, however, subject to the tion on or before January 3, 1923, at the terms of the writing given by Mrs. Catherine price of $170,000; it recites that the second Erswell to C. W. Ford of date March 1, 1916, party has examined and approved an abstract in words ind figures as follows: of the title, with a stated exception; and sets

"From this date and until December 31, 1922, forth like conditions as set forth in the prior I appoint you my agent, and give you the exinstrument, providing for execution of a clusive right to handle all my rentals and sales deed by respondent appellant, or, in event of on a commission basis of 242 per cent, on my her death, by the other parties joining in the Birmingham property, being situated and execution of the instrument,

known as 112, 114 and 116 North 19th street,

Birmingham, Ala.; and also give you the right Leader & Ullman, of Birmingham, for ap to place all the insurance carried on the above pellant.

mentioned property for time stipulated above, Arthur L. Brown, of Birmingham, for ap- same to be placed in good and reliable compellee.

panies represented by other agencies as you

may have occasion or see fit." THOMAS, J. Former appeals are report [2] It is to be noted that this contract to ed in 205 Ala. 494, 497, 88 South. 429, and convey (subject to be defeated by conditions) 208 Ala. 101, 103, 94 South. 67.

was made to expire only a few days after The necessity for discovery and accounting the contract Mrs. Erswell had theretofore has been settled on these appeals that a made with Ford. Looking to the substance discovery in equity was required as an in- rather than the form,' as should have been ddent to other relief. The essentials of a done in the decree, the trial court held that bill for accounting are given statement by the bill was not prematurely filed on Sep many authorities in this jurisdiction (Julian | tember 18, 1919. And such was the fact, 1. Woolbert, 202 Ala. 530, 532, 81 South. 32; / When the contract of September 10, 1919, Grand Bay Land Co. v. Simpson, 205 Ala. was entered into the breach of contract ex347, 87 South, 186; Averyt Drug Co. v. Ely- isted. That such was the real intention of Robertson-Barlow Drug Co., 194 Ala. 507, the parties is shown by the provisions of Ex69 South. 931 ; Henry v. Ide, 209 Ala. 367, 371 hibits A, B, and C, and the indemnity re(4, 5), 96 South. 698 ; Erswell v. Ford, 208 quired by Mrs. Erswell of date September 27, Ala, 101, 103, 94 South, 67), and are in aca | 1919, executed in triplicate, and by evidence cord with the general rule prevailing as to to be found in this record tending to show such matters in a court of equity. 1 Pom. an effort to divide commissions with Ford, Eq. Jur. (4th Ed.) 8 191. After a re-examina- and lastly to avoid the payment thereof. tion of the subject and authorities cited we It will conserve no good purpose to furhave no desire to depart from the former rul- ther discuss the evidence in detail. We are ings.

satisfied that the law and justice of the case [1] The court below heard all of the evi- has been carried into the decree, and the just dence in open court, had before it the wit- rule announced in Hackett v. Cash, supra, nesses

, observed their demeanor upon the and made to apply in chancery in Ray V. stand, and heard their testimony ore tenus. Watkins, supra, will be applied here.

100 SO.-7

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