4. Fraud 54-Evidence of similar false statements to others inadmissible where pertaining to unconnected transaction. Evidence of similar fraudulent statements to others cannot be received for purpose of making out a case of fraud in an unconnected transaction. [14] Subdivision 5 of section 14 provides | evidence of witness as to similar false statefor the payment of 30 per centum of the averments made to him by vendor, if error, held age weekly earnings to the widow when there rendered admissible, where witness later testiis no dependent child; and subdivision 6 pro- fied that such statement was made as inducement to accept purchase-money mortgage in vides for the payment of 40 per centum when there is one dependent child. Subdivision 14 payment of debt. of section 14 of the act provides that the compensation being paid after award shall cease upon the death or marriage of such dependent, and the dependency of a child shall terminate with the age of 18, "unless otherwise provided herein." In this case there was one dependent child who, as appears from the record, was 13 years old at the time of her father's death. The award is for 300 weeks, which would extend the 40 per centum rate beyond the period of the child's dependency by about 40 weeks. Under the law it is clear that when the child's dependency ceases the per centum rate will automatically drop from 40 to 30 per centum of the average weekly wage, and the judgment of award will be cor: rected so as to allow 40 per centum until the child is 18 years of age, and 30 per centum thereafter. We find no other prejudicial error in the record under our view of the proper construction of the act and of the principles of law applicable, and as corrected the judgment will be affirmed. The costs of appeal will be apportioned equally between the parties. Corrected and affirmed. ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur. BLACKWOOD et al. v. STANDRIDGE. (6 Div. 48.) (Supreme Court of Alabama. Nov. 20, 1924.) 1. Appeal and error 197(3)—Variance between pleading and proof not available on appeal where not questioned below. 5. Fraud 57-Deed executed in foreclosure admissible in action for false statement as to incumbrances. In action of deceit against vendors, because of false statements as to incumbrances, where purchaser had lost land by foreclosure of mortgage on it, deed executed by mortgage's agent in foreclosing such mortgage, was admissible. 6. Fraud 52-Evidence to connect codefendant with false representations of other defendant held admissible. In action of deceit by purchaser against vendors, because of false statements as to amount of incumbrances, questioning of one defendant as to whether codefendant had any interest in defendants held proper, as tending to connect purchase-money notes made payable to both codefendant with false representations. 7. Fraud 59(1)-Outstanding purchasemoney notes not deductible from recovery by purchaser suing vendors for fraud. Where purchaser was divested of title to land by foreclosure of mortgage on it, in action by him for deceit against vendors for false representations as to amount of incumbrances, he is entitled to recover value of land, and, if purchase-money notes were still outstanding, they should not be deducted from such amount of recovery. 8. Fraud 30-Vendor ratifying false representations of other vendor equally guilty. If false representation as to amount of incumbrances made by one vendor were adopted by other vendor and acted on by him, he would be equally guilty as one who made such rep In action of deceit by purchaser against vendors, where complaint described land as ly-resentations. ing in range 1 east, and evidence showed it to be in range 1 west, under rule 34, defendant could not take advantage of such variance on appeal, where attention of trial court was not called thereto. Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge. Action of deceit by G. H. Standridge against John Blackwood and another. Judg 2. Fraud 57-Evidence of value of incum- ment for plaintiff, and defendants appeal. bered property admissible. to In action of deceit by purchaser against vendors, because of false statements as amount of incumbrances, evidence as to value of property was admissible; such value being measure of plaintiff's damages unless part of it was preventable by redemption. 3. Appeal and error 1052(3)-Testimony held rendered admissible in view of further testimony. In action of deceit against vendors, for false statements as to incumbrances on land, Affirmed. Russell & Johnson, of Oneonta, for appellants. Ward, Nash & Fendley, of Oneonta, for appellee. SAYRE, J. In this action of deceit by appellee against appellants, the complaint alleged that in a sale of land between the parties defendants represented to plaintiff that the land was free of all incumbrance, well (102 So.) knowing that such representation was un- So. 917. Care should be observed in stattrue. There was judgment for plaintiff. [1] The complaint described the land in question as lying in range 1 east, whereas the evidence showed it to be in range 1 west; the reference being to the meridian of Huntsville. This variance can advantage defendants nothing on this appeal because the attention of the trial court was in no wise called to it. Rule 34, 175 Ala. xxi. [2] Plaintiff was allowed to show the value of the land described in the complaint. His case was that defendants had represented to him pending negotiations of the purchase and sale of the land that-apart from a mortgage for a small amount about which there was no dispute-the land was free of incumbrance, that there was in fact an outstanding mortgage for an amount nearly equal to the value of the land, and that he had lost the land by a foreclosure of the mortgage after he had paid several hundred dollars on the agreed purchase price. Evidence as to value was properly admitted, the value of the property being the measure of plaintiff's damage, unless some part of it may be prevented by redemption. 27 C. J. 101; Tillis v. Smith Sons Lumber Co., 188 Ala. 139, 65 So. 1015. [3, 4] Plaintiff was allowed to show by the witness Walker that some time after the purchase and sale of the land between the parties, in which plaintiff gave a mortgage for a large part of the agreed purchase money-several months at least-defendant John Blackwood had said to witness that the only mortgage on the land was the Standridge mortgage, meaning the purchase-money mortgage given by plaintiff. If it be conceded that this ruling, considered alone, was error, still the fact is that at a later time in the examination of the witness he testified in effect, that when defendant Blackwood made the statement in question he (Blackwood) was indebted to the witness in a considerable sum and "at that time was asking me to take the Standridge papers on what he owed me; and this is the time he told me there was nothing against them." This, in connection with the testimony against which exception was reserved, brings the case on this point fairly under the rule which holds that, if there has been evi dence of fraud inducing the contract under examination, other similar frauds, or attempts by the same party to commit other similar frauds, near the same time, may be received as circumstances in aid of such evidence. Montgomery Southern Ry. Co. v. Matthews, 77 Ala. 365, 54 Am. Rep. 60; Martin V. Smith. 116 Ala. 639, 22 ing to the jury the office of such evidence, viz., that it cannot be received for the purpose of making out, independently, a case of fraud in a transaction with which they had no connection. Martin v. Smith, supra. [5] There was no error in admitting in evidence the deed executed by John Adcock, as agent and auctioneer for the mortgagee, D. Adcock, in foreclosure of the mortgage by reason of which plaintiff was divested of the title for which he bargained with defendants. [6] Plaintiff on cross-examination of defendant John Blackwood, was correctly allowed to ask the witness whether the other defendant, his son Grover, had any interest in the notes executed by plaintiff to secure the balance of the purchase money. The notes were payable to John and G. C. Blackwood, and the fact that G. C. or Grover had an interest in them, in connection with other circumstances shown in evidence, tended to connect Grover with the false representations alleged to have been made by John. [7] The court correctly instructed the jury that in the event they should determine that the purchase-money notes executed by plaintiff, and by John Blackwood in the name of himself and his son Grover indorsed to the bank at Oneonta as security for a loan, were still outstanding and the loan for the security of which they were indorsed still unpaid, then the amount of plaintiff's recovery, if any, should not be reduced by the amount of indebtedness evidenced by these notes. The statement heretofore made as to the proper measure of damages leads to this result. Appellants refer to authorities which hold that, in case of a total loss of the estate purchased by reason of a breach of covenant for title, the agreed purchase price is the measure of damages. But this court in cases of deceit holds to a different rule. It holds, in agreement with great weight of authority, that the purchaser is entitled to the benefit of his bargain-the value of the land. Tillis v. Smith Sons Lumber Co., supra. [8] Nor did the court commit error in charging the jury that "If one of these defendants made the repthey were acted upon by the plaintiff as averred resentations as averred in this complaint, and in this complaint, and this deceit was ratified, adopted, and acted upon by the other, why he would be equally guilty as the man who actually made the statement." 27 C. J. 11. Affirmed. All the Justices concur. LUNSFORD et al. v. MARX. (2 Div. 833.) (Supreme Court of Alabama. Nov. 20, 1924.) 1. Mortgages 447-Description in complaint held sufficiently definite and certain to enable court to enforce mortgage lien. Where mortgage described land as "E. 1⁄2 of section 35, and N. W. 4 of N. E. 4 of section 35," complaint, describing land as "east half of section 35, and N. W. 14 of N. E. 4 of the N. E. 4 of section 35," held sufficiently definite and certain to enable court to enforce mortgage lien, error being immaterial, since description "E. 1⁄2 of section 35" included all of N. E. 14 of section 35. 2. Parties 84(1)-Defects in bill for lack of necessary party may be raised by plea, demurrer, answer, or by court's own motion. Defect in bill for want of necessary party can be raised by plea, demurrer, answer, or by court ex mero motu at hearing or if defect appears on face of bill, it may be pointed out by demurrer. 3. Pledges 58 (3)—Mortgagee held necessary party to assignee's suit to foreclose where assignment was by parol. Where mortgage is assigned as collateral security by parol, mortgagee is, necessary party to assignee's suit to foreclose, so that legal title remaining in him may be bound by decree. 4. Pledges 58(3)—Mortgagee or representative necessary party defendant to foreclosure suit by assignee of mortgage held as security for mortgagee's debt. Where mortgagee assigned mortgage as collateral for his debt, subsequent assignee, who is not bona fide purchaser, is not absolute owner thereof, and mortgagee or his representative is necessary party defendant to suit to foreclose mortgage, in view of Code 1923, § 9026. Aird & Aird, of Birmingham, for appellants. Beddow & Oberdorfer, of Birmingham, for appellee. MILLER, J. This is a bill in equity by Julius L. Marx against Nora L. S. Lunsford and her husband, W. G. Lunsford, and W. H. Davis, to foreclose a mortgage on land, given by Mrs. Lunsford and her husband to Edward De Graffenried to secure the balance of the purchase money for the land. The balance of the purchase money, the mortgage debt, is evidenced by promissory notes, aggregating $1,500 for the principal and notes for the interest thereon. It avers the mortgagors, Mr. and Mrs. Lunsford, have conveyed the land therein described to W. H. Davis subject to the mortgage. W. H. Davis filed demurrer to the bill of complaint, but his demurrers were not passed on by the court. The cause was submitted on demurrers of respondents to the bill of complaint. The court overruled these demurrers of Mrs. Lunsford and husband. From that decree this appeal is prosecuted by them, and they alone assign the decree as error. [1] These defendants demur to the complaint because the description of the lands therein is too indefinite and uncertain to be capable of the enforcement of the lien of the mortgage on them by a decree. A copy of the mortgage is made a part of the bill by exhibit. The land is described in the bill as situated in Hale county, Ala., as follows: "The S. E. 4 of S. E. 4 of section 26, and east half of section 35, and N. W. 14 of N. E. 4 of the N. E. 4 of section 35, all in township, 21, range 3 east, and containing in all one hun 5. Pledges 58(4)—Allegation of assignment of mortgage and debt as collateral held suffi-dred and sixty acres, more or less; reserving cient in equity. Under Code 1923, § 9010, formerly Code 1907, § 4896, allegation that mortgage and its debt was assigned as collateral security was sufficient allegation of assignment in equity. 6. Pledges 40, 58(4)-Securities pledged as collateral for debt cannot be transferred without transfer of debt nor assigned otherwise than provided by statute; bill to foreclose pledged mortgage held defective. Securities pledged as collateral cannot be transferred without transfer of debt nor otherwise than provided by Code 1907, §§ 3303, 3304, and bill by assignee to foreclose mortgage failing to show transfer of debt when mortgage was transferred by one holding it as collateral was defective. therefrom, however, three hundred feet running east and west though the above-described lands on each side of the present center of the old right of way of the Selma, Marion & Memphis Railway Company, being six hundred feet in all; 300 feet north and 300 feet south of said right of way." The mortgage describes the land the same as the bill, except it states "N. W. 4 of N. E. 14 of section 35," instead of N. W. of N. E. 14 of the N. E. 4 of section 35. This error is immaterial, as the description "E. 1⁄2 of section 35" includes all of the N. E. 4 of section 35. The description of a part of the N. E. 4 of section 35 is duplicated in the bill and in the mortgage. Appeal from Circuit Court, Hale County; The description of the land in the bill and S. F. Hobbs, Judge. Bill in equity by Julius L. Marx against W. H. Davis, Nora L. S. Lunsford, and W. G. Lunsford, to foreclose a mortgage. From a decree overruling their demurrer to the bill, respondents Nora L. S. Lunsford and W. G. Lunsford appeal. Reversed, rendered, and remanded. in the mortgage evidently contains a mistake, because each states "containing in all one hundred and sixty (160) acres, more or less." When the government numbers "S. E. 4 of S. E. 4 of section 26" (40 acres), and east half of section 35" (320 acres), purport to describe 360 acres, more or less. The description of the land in the bill is suffi (102 So.) ciently definite and certain for the court by | interested in the issue tendered by the averdecree to enforce the lien and the mortgagements of the bill, and has an interest in the thereon, and the bill is not subject to this mortgage and the debt it secures which the demurrer assigned to it. The appellants insist that Edward De Graffenried if living, and his legal representative if dead, is a necessary party defendant to this cause, and the court erred in overruling this ground of their demurrer. [2] If a bill is defective for the want of a necessary party, it can be raised by plea, demurrer, answer, or by the court ex mero motu at the hearing. If this defect appears on the face of the bill, it may be pointed out by demurrer. McMaken v. McMaken, 18 Ala. 576; Prout v. Hoge, 57 Ala. 28; Langley v. Andrews, 132 Ala. 147, 31 So. 469; Travis v. First Nat. Bank, 210 Ala. 620, headnote 5, 98 So. 890. [3] This mortgage for the balance of the purchase price, $1,500, for the land, was executed by Mr. and Mrs. Lunsford to Edward De Graffenried on January 1, 1910; and on the same day the bill alleges he "transferred and assigned said mortgage and debt to Ed Marx as collateral security for an indebtedness of $5,000, and did grant, bargain, sell, and convey to the said Ed Marx the real estate described in said mortgage." This averment fails to state whether the transfer and assignment were oral or in writing; if made by parol the mortgagee or assignor is a necessary party, that the legal title or estate remaining in him may be bound by the decree. Denby v. Mellgrew, 58 Ala. 147, headnote 3; Buckheit v. Decatur Land Co., 140 Ala. 216, 37 So. 75. bill seeks to foreclose; and that interest will necessarily be affected by the decree in the cause. Edward De Graffenried or his estate, if he is dead, has an interest in this mortgage and the debt it secures; his transfer to Ed Marx was not absolute and unconditional, but simply as collateral. He, if living, or his representative, if dead, is a necessary party defendant to this cause. This defect appears on the face of the bill; the demurrers point it out, and they should have been sustained by the court. Hodge v. Joy, 207 Ala. 198, headnotes 24, 25, 92 So. 171; Prout v. Hoge, 57 Ala. 28; Jones v. Caldwell, 116 Ala. 364, 22 So. 456; Langley v. Andrews, 132 Ala. 147, 31 So. 469; and authorities supra. [5] The allegations as to the transfer of the mortgage and its debt by De Graffenried to Marx are quoted hereinbefore in this opinion. This clearly shows a transfer of the mortgage and its debt as collateral to secure a debt due Marx by him. Ed Marx held the mortgage and the notes, it secured, as collateral. The averment in the bill as to this transfer and assignment of the mortgage and its debt as collateral is sufficient in equity. This court in Harton v. Little, 176 Ala. 270, 57 So. 852, wrote: "A transfer of the debt, by writing or by parol, is in equity an assignment of the mortgage." Buckheit v Decatur Land Co., 140 Ala. 216, 37 So. 75; section 9010, Code 1923, which was section 4896, Code 1907; and authorities cited. [4] It is to be observed that this transfer by De Graffenried of the mortgage is not The averment in the bill as to the transabsolute as shown by the bill, but only as fer of the mortgage by Jacob Marx, as adcollateral to secure a debt due by him to Edministrator of the estate of Ed Marx, to the Marx. Ed Marx died and Jacob Marx as complainant, reads as follows: his administrator did transfer and assign "That said Jacob Marx as administrator of this mortgage and the debt it secured to the estate of Ed Marx did thereupon, and prior Julius L. Marx, the complainant. It appears on the face of the bill that Ed Marx held this mortgage and the debt secured by it as collateral for a debt due him by Edward De Graffenried. The complainant on the face of the bill does not own an absolute, unconditional title to this mortgage and the Idebt it secures. He does not claim to be a bona fide purchaser of the notes and mortgage before maturity for value without notice of the rights of Edward De Graffenried, therein. If the original debt due Ed Marx by Edward De Graffenried, for which the mortgage and its debt were assigned to secure as collateral, has been paid, then the title to the collateral, the notes and mortgage, divert and they would belong to De Graffenried if living, or his estate if dead. St. John v. O'Connel, 7 Port. 466, headnote 11. See, also, section 9026, Code 1923. Thus it appears on the face of the complaint that Edward De Graffenried, if living, and his estate, if dead, is materially to this suit, transfer said mortgage of Norah L. S. Lunsford and her husband, W. G. Lunsford, and the debt secured thereby to complainant Julius L. Marx, who is now the holder and owner of said mortgage, and the debt secured thereby." [6] Collateral securities to secure the payment of a debt must not without a transfer of the debt be transferred or assigned otherwise than is provided by sections 3303 and 3304, Code 1907. Section 3302 of the Code of 1907 reads as follows: "Collateral securities taken, or property pledged, to secure the payment of a debt, must not, without a transfer of the debt, be transferred or assigned otherwise than is hereinafter provided. A transfer of the debt passes to the transferee the right of the transferor in such A collateral security or property pledged. transfer or assignment of such security or property pledged, not accompanied by a transfer of the debt, is a discharge of the hypothecation or pledge, restoring the right and title of the person from whom it was received." In action under Homicide Act, a plea of self-defense showing homicide occurred in defendant's place of business need not negative opportunity for retreat. 6. Death 54-Plea may allege real or apparent necessity for killing in alternative. This bill fails to allege that the $5,000 debt 5. Death 54-When plea of self-defense of De Graffenried to Ed Marx for which need not negative opportunity for retreat, the mortgage and its debt were held as colstated. lateral was transferred or assigned to the complainant and it fails to aver that this collateral mortgage and its debt were sold as the statutes (sections 3303 and 3304, Code 1907) permit and direct, and that the complainant was the purchaser of them at the sale. The averments of the bill as to the manner of the transfer of the collateral by the administrator of Ed Marx to the complainant is not in accord with the statute (section 3302, Code 1907), and it fails to show the complainant has title to the collateral. The facts alleged in the bill are insufficient to show a legal transfer to the complainant of this mortgage and its debtthey being held as collateral. This defect in the bill of complaint is pointed out by the demurrers, and they should have been sustained by the court. The decree will be reversed, one will be entered here sustaining the demurrers of the appellants to the bill of complaint on the grounds indicated in this opinion, and the cause will be remanded. Reversed, rendered, and remanded. In action under Homicide Act, plea of necessity for killing in self-defense may set forth real or apparent necessity in the alternative. 7. Death 21-"Apparent necessity" for killing in self-defense must be present and imminent. In actions under Homicide Act, "apparent necessity" which will justify killing in self-defense must be such as to impress a reasonable man of its presence and imminence, and must so impress defendant at time of fatal shot. 8. Death 54-Requiring amendment to plea of self-defense held not to impose greater duty on defendant than law requires. In action under Homicide Act, where defendant's plea of self-defense stated that danger was imminent and was either real or reasonably apparent, court's action in sustaining demurrer thereto, thus requiring defendant to amend it by adding that he was impressed with honest belief of impending peril to his life or ANDERSON, C. J., and SAYRE and limb, and that it was necessary for him to shoot GARDNER, JJ., concur. DRUMMOND v. DRUMMOND. (6 Div. 45.) (Supreme Court of Alabama. Oct. 23, 1924. Rehearing Denied Nov. 27, 1924.) I. Appeal and error 1040(16)—Rulings on original counts immaterial where new counts substituted. Any ruling adverse to defendant on original counts in complaint is immaterial where complaint was amended by substituting new counts. 2. Death 46-Requisites of complaint stated. In action under Homicide Act, where death is result of negligence, complaint should show relation between parties as to raise duty from one to other, whereupon general averment of negligence is sufficient to show failure of duty, and should be followed by averment that negligence was proximate cause of death. deceased in order to protect himself from death or great bodily harm, held not to impose on defendant greater duty than law requires. 9. Executors and administrators 51-Damages recoverable for wrongful death not assets of estate. Damages recoverable in action under Homicide Act are not assets of estate, administrator being mere representative or trustee of next of kin in suing for their benefit; and hence a plea seeking to set off an indebtedness due from decedent to defendant against claim for damages was properly overruled. 10. Witnesses 363(1) — Any fact showing bias of witness proper evidence, and may be brought out on cross-examination. Any fact tending to show bias on part of witness is proper evidence and may be brought out on cross-examination, wide latitude being allowed to develop such fact. 1. Witnesses 372(1)-Extent of cross-examination and recall of witnesses discretionary with court. The extent of cross-examination to show 3. Death 47-Counts in complaint held not witness' bias and recalling of witness for that demurrable. In action under Homicide Act, counts in complaint that defendant wrongfully caused death of plaintiff's intestate by wrongfully shooting him with a pistol, and as proximate consequence of which wrongful shooting plaintiff's intestate died, held not demurrable. 4. Death54-Plea of self-defense should show all elements. In action under Homicide Act, where selfdefense is set up as justification, all elements thereof should appear in plea. purpose is in discretion of trial court. 12. Trial 18-Time allowed for trial and avoidance of collateral issues discretionary with court. The prevention of prolonged trials and avoidance of multiplied collateral issues are committed to wide discretion of trial judge. 13. Witnesses 370 (1)—Evidence that witness favored one side admissible. Evidence tending to show that witness favored one side, such as giving full interview to |