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cent. per annum, or a charge at the rate of , ingly. and intentionally included a greater 8 per cent. on the principals when same rate of interest in the notes and mortgages were due in less than one year, thereby executed by the complainants, though ignormaking the rate greater than 8 per cent. ; | ant of the fact, brings the case within the that such interest charges were included in influence of section 8567 of the Code of the face of the papers, whereby they were ren- 1923, under our early case of Wright v. Eldered usurious; that such papers were drawn liott, 1 Stew 391, reaffirmed in Wright v. up by the agents of the bank; that complain- Minter, 2 Stew. 453. The case of Uhlfelder ants are unlettered persons, unable to read v. Carter's Adm'r, 64 Ala. 527, cited by apor write, kept no accounts of the transac- pellants' counsel, is not in conflict with this tions, but relied upon the agent of the bank holding, as it merely decides that, in deterto keep the records, compute interest charg- mining whether or not the contract is ines, and draw up the papers, complainants fected with usurious interest, there must be signing by mark. Wherefore it is alleged an intent to take or reserve more than lawcomplainants are unable to state the specific ful interest-not an intent both to take and items, amounts, and dates of the several pay more than lawful interest. usurious interest charges with greater par We also think that the bill as last amendticularity.

ed sufficiently sets out, so far as the comW. W. Sanders, of Elba, for appellant.

plainants are able, the item or items conP. B. Traweek, of Elba, for appellees.

stituting usury. Williams V. Noland, 205

Ala. 63, 87 So. 818. ANDERSON, C. J.

The trial court did not err in overruling [1] The bill is filed by Jane E. Davis and her husband to cancel the demurrer to the bill as amended, and a certain deed made by them, or to have the the decree is affirmed.

Affirmed. same declared a mortgage, and to redeem, and also seeks discovery and an accounting. The bill shows that these complainants were

SOMERVILLE, THOMAS, and BOULDIN,

JJ., concur. joint vendors and mortgagors throughout and that they have a joint and common interest in canceling or adjusting their joint obligation, notwithstanding the wife may own the land and the husband the personal property embraced in the conveyances. Each have a SMITH, Sheriff, et al. v. ALABAMA GREAT joint interest in all the credits that should

SOUTHERN R. CO. (5 Div. 884.) go to the mortgage indebtedness made by either of them, or arising from a sale or con

(Supreme Court of Alabama. Nov. 20, 1924.) version by respondent of the mortgaged prop. 1. Sheriffs and constables Om90—Sheriff canerty, and it matters not as to the ultimate

not demand indemnity when execution deresult or status of ownership between them,

fendant has in possession property prima and they are jointly liable upon the mort

facie subject to levy. gages prima facie, though the wife claims

Where defendant in execution has in his nonliability because of being surety for her possession property prima facie subject to husband. They ask for an accounting and levy, sheriff cannot refuse to levy execution de redemption in the alternative, and this does bonis propriis under Code 1907, § 2814, benot render the bill multifarious. Section cause demand for indemnity bond made under 3095 of the Code of 1907 ; Forcheimer v. Fos- Code 1907, § 4107, is refused, such section apter, 192 Ala. 218, 68 So. 879, and cases there plying only when personalty to be levied on and cited.

not applying to realty. [2] To constitute the offense of usury, 2. Executors and administrators Ow454—Exethere must be an intent to do something

cution against administrator personally is which is in violation of the statute. In ac

substitute for action of devastavit. cordance with the weight of authority, it is

Proceedings under Code 1907, § 2814, prosufficient if this unlawful intent is enter- viding for execution against executor or adınintained by the lender alone against whom istrator personally, is substitute for an action the usury acts are aimed, and the fact that for devastavit against personal representatives the borrower does not know that he is con when execution de bonis intestati has been retracting for or paying usurious interest is turned "no property." immaterial. But in some jurisdictions it is

3. Executors and administrators Om453(4)-said that usury is predicated upon a contract, and cannot exist unless the unlawful

Judgment against representatives is conclu.

sive as to amount due and sufficiency of asintent is shared by both lender and borrow

sets to pay. er; that is, the excessive payment must have

Judgment or decree against personal repbeen made and received in accordance with resentative in his representative capacity, if the terms of a mutual agreement. 39 Cyc. permitted to stand, is conclusive against him 920. It seems that the averments of the of amount due and owing by him, and that he bill of complaint, that the respondents know-1 has sufficient assets to pay it.

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

(102 So.) 4. Sheriffs and constables 106–Right to in the year 1917. The evidence showed that protect against personal liability on judg. during that year J. T. Fuller owned and was ments granted representative of insolvent in possession of sufficient property, both real estate does not affect sheriff's liability for and personal, to satisfy plaintiff's judgment. failing to levy execution.

June 4, 1919, appellee brought this action Right granted personal representative of insolvent estate by Code 1907, 88 2793, 2794, official bond as for a devastavit in failing

against Sheriff Smith and sureties on his 2803, to protect against personal liability on judgments does not affect sheriff's liability for to make the money on the execution against failure to levy execution de bonis propriis J. T. Fuller de bonis propriis. The facts against personal representative.

were without dispute, and the court gave the

general charge in favor of plaintiff, appelAppeal from Circuit Court, Tallapoosa lee.' County; S. L. Brewer, Judge.

Jas. W. Strother, of Dadeville, for appelAction for devastavit by the Alabama lants. Great Southern Railroad Company against

Denson & Denson, of Opelika, for appellee. B. B. Smith, Sheriff, and sureties on his official bond. From a judgment for plain

SAYRE, J. The execution against J. T. tiff, defendants appeal. Transferred from

Fuller, de bonis propriis, was issued in purCourt of Appeals under section 6, page 449, suance of section 2014 of the Code of 1907: Acts 1911. Affirmed.

“2814. When execution issues de bonis pro

priis.--When any judgment is rendered in the January 16, 1917, appellee recovered judg- circuit court against any executor or adminment in the circuit court of Lee county istrator, as such, and an execution thereon has against J. T. Fuller, as administrator of the been returned 'no property' by the sheriff or estate of J. L. Fuller, deceased. There was other officer of the county in which such judgno suggestion of the insolvency of the es

ment was rendered, an execution may issue tate in the keeping of defendant administra against the executor or administrator personaltor. February 27th appellant Smith, then ly, to be levied on his goods and chattels, lands

and tenements." sheriff of Tallapoosa county, returned an execution against J. T. Fuller, as administra [1] Appellee's case against the sheriff and tor, “no property," and on March 29th the his sureties is not to be prejudiced by reasheriff of Lee county made a similar re son of the fact that appellee refused to make turn on an execution of the same tenor which a bond of indemnity as the sheriff demandhad been issued to his county April 9th ed it should do. Section 4107 of the Code execution against J. T. Fuller personally was of 1907, under which the demand was made, placed in the hands of Sheriff Smith. April contains no provision in respect of levies on 11th appellant Smith, sheriff as aforesaid, real property. It deals exclusively with the demanded a bond of indemnity as a condi- | matter of levies made or about to be made tion to levying execution upon the individ personal property. The provision is that ual property of J. T. Fuller, but plaintiff the sheriff may require a bond of indemnity on April 14th refused to make such bond, when a reasonable doubt exists whether the and demanded of the sheriff that he levy | personal property levied upon or about to the execution according to its command. be levied upon belongs to the defendant or This last execution was held by him with is subject to levy and sale; but the defendout service or return until June 29th, when ant in execution had in his possession prophe returned it with an indorsement show- erty prima facie subject to the writ; nothing that its collection de bonis propriis had ing appeared to the contrary. It was the been enjoined by a writ from the circuit sheriff's duty to make the levy, and he had court of Lee. June 28th, on the bill of J. no right to refuse because his demand for T. Fuller, a temporary injunction was is a bond of indemnity had been refused. Pil. sued enjoining the levy of the last-mention- cher v. Hickman, 132 Ala. 574, 31 So. 469, ed execution on the individual property of 90 Am, St. Rep. 930. said Fuller; but November 5th said injunc [2, 3] The history of section 2814 and its tion was discharged, and shortly thereafter meaning are shown in Dangaix v. Lunsford, the bill was dismissed for want of prosecu 112 Ala. 403, 20 So. 639. The proceeding untion. Also it appeared in evidence that on der it is a substitute for an action against March 20th J. T. Fuller as administrator the executor or administrator as for a dev. aforesaid filed in the probate court a

re- astavit. when execution de bonis intestati port of the insolvency of the estate in his has been returned “no property." From the keeping; that on May 14th an order was case just mentioned, from Banks v. Speers, made setting the insolvency report down for 97 Ala. 560, 11 So. 841. and from the cases hearing on June 15th; and that on said last- there cited, it appears to be the settled law mentioned date a decree was entered declar- of this state that a judgment or decree ing the estate of J. L. Fuller, deceased, to against a personal representative in his rerbe insolvent. This decree was certified to resentative capacity, if permitted to stand, the circuit court three days later-all this is conclusive on the personal representative

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

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of the amount due and owing by him as rep-, Co. v. Daniel, 209 Ala. 363, 96 So. 424, and resentative, and that he has in his hands such, in effect, was also the decision in Pilsufficient assets for its payment.

“These cher v. Hickman, supra. presumptions he will not be heard to gain We see no recourse on the record before say or deny." The statute law affords to ex us but to affirm appellants' liability. ecutors and administrators opportunity, Affirmed. deemed sufficient by the Legislature, to ascertain the condition of an estate in their ANDERSON, C. J., and GARDNER and hands so that, if the estate be insolvent, MILLER, JJ., concur. they may avoid personal liability by pleading insolvency. Thus section 2803 of the Code of 1907 provides that

"No suit must be commenced against an executor or administrator, as such, until six

GAMBLE v. LEVA. (2 Div. 843.) months, and no judgment rendered against him, as such, until twelve months after the grant of (Supreme Court of Alabama. Nov. 20, 1924.) letters testamentary or of administration."

1. Insane persons am 64—Son having ability re. He may, at any time before judgment, quired to support indigent father. plead specially that the estate has been de Under Code 1907, 8 1614, insane son, who clared insolvent. Code, $ 2794. And dur- had sufficient property to support dependent, ing the progress of any suit he may show father, who was unable to maintain himself,

was liable for such support. that the estate in his keeping has been reported insolvent, and thereupon have a con. 2. Insane persons 64—Guardian of insane tinuance until the final disposition of such person may be permitted to support indigent report. Code, 8 2793. And in Lambert v. father of such person out of estate. Mallett, 50 Ala. 73, it was said that, while Under Code 1907, § 4403, guardian of inthe judgment is certainly conclusive of any sane person may be permitted by probate court defense he might have interposed, if circum- to apply portion of income or principal of such stances beyond his control have since made person's estate to father dependent on him. the estate insolvent, the administrator ought 3. Insane persons am 64—"Family" of son de. not, in good conscience, to be held personal

fined. ly accountable. And we may assume that

"Family” is flexible in meaning, and desome such ground of relief was set up in the pends for definition largely on different circumbill which was filed by the administrator stances under which used, and, as used in Code in this case; but that bill came to naught, 1907, § 4403, requiring probate court to direct and, we may add, there was in this case no portion of insane person's property to be approof to bring the defendant administrator's propriated for support of family, includes those case within the influence of the doctrine of persons to whom insane person was liable to Lambert v. Mallett, supra.

support or aid in supporting from his estate, [4] But the foregoing considerations are

in view of section 1614; (citing Words and

Phrases, Second Series, "Family"). addressed to the equity of the case as against the administrator personally. With that

(Ed. Note.-For other definitions, see Words case the sheriff had no concern, nor did it and Phrases, First and Second Series, Family.] signify to him anything of legal consequence 4. Insane persons en 64-Statutory amount rethat a report of insolvency had been filed coverable by county for support does not con. after judgment. So long as the judgment trol allowance for support of dependent of was permitted to stand, it was conclusive

insane person. against the defendant in execution and, of Provision of Code 1907, § 1614, permitting course, against the sheriff. It was his duty county to recover from persons liable thereunto levy according to the mandate of the writ, der to support poor persons at rate of $8 per leaving the rest, if occasion should arise, to month for support furnished by county, does be determined on appropriate proceedings to plication of guardian of insane person, under

not control allowance by probate court, on apbe had between the parties to the judgment. section 4403, for support of such person's de

Appellant failed and refused during the pendents from his estate. time from April 9th to the date of the injunction, June 28th, to levy on the property 5. Insane persons Ow64-Allowance of $12 per of the defendant in the execution de bonis month for support of dependent father of inpropriis. In Whitsett v. Slater, 23 Ala. 626,

sane person held reasonable. the sheriff failed to levy for 30 days after

Where insane person was supported by he had received an execution against a citi government, and had estate of from $5,000 to zen of his county, who was in open posses-above support, of $157.50, out of which guard

$6,000, and monthly income from government, sion of personal property sufficient to satis- ian had to pay only for his clothing and tobacfy it, and the court held that he was guilty co, allowance of $12 per month, under Code of a want of due diligence. This case was | 1907, § 4403, for support of father, his only cited with approval in Planters' Chemical dependent, was reasonable.

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

(102 So.) 6. Insane person's 64—Method of determin (1) A son with sufficient ability must suping portion of estate of insane person to be port his father, if he is unable to maintain appropriated to support of dependent father himself.

Section 1614, Code 1907. In constated.

struing this section (section 1614, Code 1907) In fixing portion of estate of insane person as it appeared in the Code of 1896, which is to be appropriated, under Code 1907, § 4403, to the same as in the Code of 1907, this court, support of dependent father, court should de- in L. & N. R. Co. v. Jones, 130 Ala. 473, 30 termine whether estate is sufficiently able to contribute, and, if so, the amount should be So. 591, wrote: suitable to estate and condition in life of par "That the intestate's mother was a widow ties to be supported from it.

was a fact relevant to show that she stood in

a relation of dependency, and therefore would Appeal from Probate Court, Dallas Coun- probably have received contribution from him, ty; Watkins M. Vaughan, Judge.

had he lived. This from a legal, as well as Petition by Leo Leva, as guardian of the moral, standpoint, since, under section 3233 of estate of Thomas L. Acoff, a person of un

the Code, the son is legally liable for the sup

port of an indigent mother" sound mind, for permission to apply a portion of the estate of the ward to support the In Williams v. Williams, 202 Ala. 540, 81 father of the ward. From a decree or judg- So. 42, this court again wrote: ment granting the petition, Harry W. Gam

"It is therefore, likewise, the duty of the child ble, guardian ad litem for the non compos, to support the parent, if the parent is unable to appeals. Affirmed.

support himself and the child is able so to do." Harry W. Gamble, of Selma, for appellant. Pitts & Leva, of Selma, for appellee.

So it appears from the application and the

facts stated in the decree that Elbert Acoff MILLER, J. This is an application by Leo is the father of Thomas L. Acoff ; that he Leva, as guardian of Thomas L. Acoff, a

is old and unable to maintain himself; that person of unsound mind, for a portion of he is dependent on his son ; and his son from the income or of the principal of his estate, his estate has sufficient ability to support his to be appropriated under decree of the court father. This makes the son liable to support to the support of Elbert Acoff, his father, on

his father. Authorities supra. the ground his estate is sufficiently able to

[2, 3] But this son is insane. Can his contribute to his support, that Elbert Acoff guardian by application to the probate court is unable to maintain himself, and a depend- having jurisdiction of his estate, secure perent father is part of the family of a son, mission by decree for a portion of the inwho has no wife or children. Henry w. come or principal of the estate to be apGamble was appointed guardian ad litem propriated to the support of the father? by the court to represent Thomas L. Acoff Section 4403 of the Code of 1907 permits the in this proceeding. The court, by decree on probate court to do so for the support of the hearing, found the averments of the the family of the insane person. Thomas application to be true, granted the applica- ... Acoff has no wife-no children and no tion, and directed the guardian to pay out dependents, except his father. Can a father of the estate the sum of $12 a month for be included in the family of a son? Does the the support and maintenance of Elbert Acoff, word “family," as used in section 4403 of the father of Thomas L. Acoff. This appeal the Code of 1907, include, under the facts is prosecuted by the guardian ad litem from of this case, an indigent father of an inthat decree, and it is the error assigned. sane son with sufficient estate to support both It appears from the sworn application and from the income? The word family is flexthe decree of the court, which found the ible in its meaning, depending for its definiaverments therein to be true, that Thomas tion largely on the different circumstances L. Acoff, a Negro, became insane, incurably under which it is used. 2 Words and Phras$0, while a soldier in the United States Army, es, Second Series, p. 461. As it appears in and is now confined in a government hospi- this section (4403), it was intended to intal at Washington, D. C. The United States clude all those persons to whom the ingovernment pays his guardian $57.50 per sane person was liable to support or aid in month on an insurance policy, and $100 per supporting from his estate. The word “fammonth as compensation, and the only ex- ily," as here used, includes his father, as he pense to be paid by his guardian is for his has sufficient estate to support himself and Clothing and tobacco. His estate now in the his father: his father being unable to mainhands of his guardian, has accumulated from tain himself, and there being no other dethese sources until it amounts to between $5,- pendents. Sections 4403 and 1614, Code 1907, 000 and $6,000, and is increasing monthly. and authorities supra. He has no wife or children His father, El

[4-6] Did the court err in the amount, $12 hert Acoff, is over 70 years of age, unable per month, allowed out of the estate of the to earn a living, and needs assistance. No son for the support of his father?

Under one except his father is dependent on him section 1614, Code 1907, when the county for support and maintenance.

makes provision for such persons it can reFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

cover from the person liable thereunder for ! the case of Robert Smith v. State (2 Div. the support at the rate of $8 per month from 296) 101 So. 910. Writ denied. the time the county made provision for him. This is persuasive, but not controlling, on

R. B. Evins, of Birmingham, for petitioner. the probate court in the amount of support

Harwell G. Davis, Atty Gen., opposed. to be allowed under application of the guardian, under section 4403 of the Code of 1907. THOMAS, J. Acts 1915, p. 573, was In fixing the portion of the income or prin- amended, as to section 13 thereof, by Acts cipal of the estate of such insane person to 1923, p. 61. The authority is given courts of be appropriated to the support of the indi- county commissioners, boards of revenue, and gent father, the court should determine, other governing bodies of the several counfirst: Is the estate sufficiently able to do so? ties, for the purpose of maintaining the pubIf so, then the amount thereof should be lic roads, bridges, and ferries, to impose upon suitable to the estate and the condition in the "owners of all vehicles,” except those exlife of all the parties to be supported from it. empted, "a license tax," and such courts, Authorities supra. This amount, of $12 per boards, or other governing bodies are given month, fixed by the court, is neither unrea- the authority to "classify such vehicles, in sonable nor excessive, under the facts shown determining the amount of tax to be levied by the application and found true by the on each class." decree.

The indictment was under the act of 1915 The decree is free from error, and is af- and 'section 13 thereof, which also gave the firmed.

authority to impose upon the owners of veAffirmed.

hicles, which are used upon the public roads

of the county, such license tax for each class ANDERSON, C. J., and SAYRE and of vehicles as may be deemed advisable by GARDNER, JJ., concur.

such courts or boards. The amendment was, no doubt, to clear the statute from the exemption declared to exist as to private automobiles used by the owner for himself and family, and not for commercial purposes.

Hill v Moody, 207 Ala. 325, 93 South. 422; Ex parte SMITH.

Gen Acts 1915, p. 489; Gen. Acts 1915, p. SMITH v. STATE.

573.

The act and ordinance were enacted in the (2 Div. 853.)

exercise of the police power of government. (Supreme Court of Alabama. Nov. 6, 1924. The courts concede a wide discretion to the Rehearing Denied Dec. 4, 1924.)

Legislature, relative to grounds of classifica

tion. If a statute so classifying is reason. 1. Constitutional law w 230(2)-Licenses 7(3), 14(1)-Ordinance, levying license tax ent with the general principles of the law

able in its administration, and not inconsiston vehicles used to transport logs, staves, etc., held constitutional; "use."

of the land—especially those having relaOrdinance of county commissioners” court, tion to the liberty of the citizens and the levying license tax, under Acts 1915, p. 576, & rights of private property-it will not be dis13, as amended by Acts 1923, p. 61, on vehi- turbed. Yick Wo v. Hopkins, 118 U. S. 356, cles used on roads in hauling logs, staves, etc., 6 S. Ct. 1064, 30 L. Ed. 220, 227; Henderson may be reasonably construed as applicable only v. Mayor, 92 U. S. 259, 23 L. Ed. 543; Chy to vehicles commonly so used, and not to ve- Lung v. Freeman, 92 U. S. 275, 23 L. Ed. 550 ; hicles only occasionally so used, and is there- Ex parte Virginia, 100 U. S. 339, 25 L. Ed. fore not unconstitutional as an arbitrary, unreasonable, and discriminatory classification: 676; Soon Hing v. Crowley, 113 U. S. 703, to "use” implying habitual action or some de 5 S. Ct. 730, 28 L. Ed. 1145. Hence the lawgree of continuity or permanence (citing Words makers are free to create classes upon whom and Phrases, "use").

the taxing powers may be laid, provided the

classification for such purpose (1) bears a 2. Constitutional law On 48 Construed as

reasonable relation to the subject of the leg. constitutional, if reasonably possible.

islation, and (2) is uniform in its operation Courts will choose that construction of statute which will avoid unconstitutionality, it or administration; that is, that subjects of it be reasonable, even though invalidating con- the same class are made to bear equally and struction be more reasonable.

uniformly the burden imposed. As tests in Sayre and Thomas, JJ., dissenting.

the determination of the operation of a classification contained in a statute or ordinance,

the class must: (a) Be germane to the purCertiorari to Court of Appeals.

pose of the law; and (b) bring within its inPetition of Robert Smith for certiorari to fluence all who are under the same condi. the Court of Appeals, to review and revise tions, and be applied equally to each memthe judgment and decision there rendered in / ber of the class, (c) must not be based on

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

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