have been given as requested by defendant, [ 2. INFANTS (§ 93*)-AVOIDANCE OF CONTRACT -PLEADING. and their refusal was error to reverse.

Since the defensive matters urged in brief were not specially pleaded, and were not comprehended in the general issue pleaded, the result must be an affirmance of the judgment below upon the only two errors assigned. Affirmed.

mony, as appears from the bill, which pur- did exist but an election availed of aborted it. ports to contain all of the evidence, being en- The basis of the act operating, it is insisttirely silent in respect to whether the sale ed, the avoidance of the mortgage, was the inwas unconditional, or in express, implied, or fancy of the mortgagor. Infancy is, it is otherwise, recognition of or subordination to never now doubted, matter of special plea. the mortgage to the Dothan Mule Company. If Rolen had been haled into court to answer The defendant traded the mule to the plain- the Dothan Mule Company's suit, either for tiff, warranting the freedom of the animal the debt or to recover the horse, and Rolen from incumbrance or lien. The mortgagee, had relied upon his minority to relieve him under the terms of the mortgage and after its from the binding qualities of his contract, law day, demanded the horse of the plaintiff, merely voidable, it is evident he must have who, to avoid seizure and sale, paid the mort- pleaded specially his infancy. Can this degage debt. There seems not to have been, nor fendant, asserting, in defense, that identical is there now, any contention that the registra-power given the infant, stand upon any hightion of the mortgage was not legally effected. er ground, or enjoy a more liberal indulIt is urged for appellant that the sale of gence than the infant himself, could have enthe animal by Rolen was an act of disaffirm-joyed? We think not. ance of the contract of mortgage, thereby rendering the instrument a nullity, and hence relieving the animal, in the hands of plaintiff, free from the charge thereof, and, in consequence, obviating the breach of warranty declared on in the complaint. Assuming for the occasion only that an infant, before attaining his majority, may avoid his contract, and also that an unconditional sale of the chattel evinces an intention to not be bound by the mortgage, and that such an act avoids the mortgage, we think there can be no serious doubt but that, in order to avail a party affected by the avoidance (granting for the argument that he may plead it), the matter must be specially pleaded. Our statute requires the special pleading of all matter of defense, unless reliance is put solely on a denial of the plaintiff's cause of action. Code 1907, § 5331. In many of our decisions the substance of the statute, in this regard, has been expressed in the terms: The general issue denies and puts in issue the truth of

the averments of the complaint.

The complaint here, aside from other presently unimportant averments, alleges that the horse in question was incumbered with a mortgage to the Dothan Mule Company. The mortgage's legal execution and existence was not denied, except as that resulted from an act imputed to the mortgagor, subsequent to the execution of that instrument. The mortgage was valid, is the effect of the contention, until the mortgagor, an infant, disaffirmed and avoided his only voidable, not void, act. The plaintiff, in effect, says: "I was compelled to pay an incumbrance, a mortgage, resting upon the animal, and you assured me there was none." In reply the defendant would say: "There was such a mortgage, efficacious and valid, but the mortgagor exercised an election to avoid it; and hence I am

excused from liability for breach of warranty on that account." Unquestionably the complainant's allegations, in that respect, were proven prima facie by the introduction of the mortgage duly executed. To avoid it the act of the mortgagor must be invoked, whereby is necessarily implied that a valid mortgage

DOWDELL, C. J., and SIMPSON and MAYFIELD, JJ., concur.

(163 Ala. 626)

FALLEY v. FALLEY. (Supreme Court of Alabama. Dec. 14, 1909.) 1. WORDS AND PHRASES "FILED."

A paper is "filed" when it is delivered to the proper official, charged with the duty of indorsements thereon. filing the paper and with making the appropriate

[Ed. Note.-For other definitions, see Words and Phrases, vol. 3, pp. 2764-2770.] 2. DIVORCE (§ 160*)-SUBMISSION OF CAUSE IN VACATION-REQUEST FILED.

99, p. 118), providing that where a decree pro

Under Code 1907, § 3164 (Gen. Acts 1898

confesso is taken in divorce, and the cause is ready for submission, the solicitor shall "file" a written request with the register to deliver the papers in said cause to the chancellor and file his note of testimony, and the clerk shall deliver all papers in vacation to the chancellor, etc., a letter, written by solicitors for complainant in divorce, after default, to the register, requesting that, "after making out note of testimony, send it to us for submission in vacation. We will attend to having it submitted"-is a sufficient writing "filed" with the register to authorize a decree in vacation.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. 160.*]

3. DIVORCE (§ 146*)-DEFAULT DECREE-SUBMISSION IN VACATION-CUSTODY OF CHIL

DREN.

Under Code 1907, § 3164, authorizing uncontested divorce cases to be submitted and decided in vacation, which created an exception to the general rule that respondent must consent to having a case decided in vacation, that a for the custody of children did not deprive the complaint in an uncontested divorce case asked proceeding of its character as a divorce case under the statute, in view of Code 1907, § 3808, providing that on granting a divorce the court may commit and regulate the custody of children, etc.

[Ed. Note. For other cases, see Divorce, Dec. Dig. § 146.*]

Appeal from Chancery Court, Crenshaw | tion, and the assurance is given that they County; L. D. Gardner, Chancellor.

Suit by Susan Falley against Jeff Falley. From a decree for complainant, respondent appeals. Affirmed.

Parks & Rankin, for appellant. Samford & Carroll, for appellee.

would attend to the submission. We think it would be rather too narrow, in view of the object the statute intends to conserve, to require the request thereunder to pursue the Foster, statute's language. Whether the register sent the papers in the cause to the chancellor by one means or another cannot, we think, be important. That he might do so by hand, as he can certainly effect the purpose through well as by post or express, is clear. If so, led to sustain the decree on this point of atWhile we feel impeltack, it cannot be denied that the better practice under this statute (section 3164) would be to make the "request" provided more formal

solicitors in the cause.

MCCLELLAN, J. The decree appealed from granted appellee a divorce, and, as pray ed in her bill, she was given the custody of the children of the union. The respondent made no defense to the bill, and decree pro confesso appears to have been regularly entered against him. Subsequent to the entry of this decree the solicitors of record for the complainant posted a letter addressed to the It is further objected that the decree is erregister, and it was promptly received by him, noting the inclosure therewith of the testi-roneous because, without the consent of the mony taken in support of the averments of respondent, a submission in vacation cannot the bill, and also requesting him to make out be properly effected except in divorce cases, a note of the testimony in the cause. and the custody of children being involved,

ted.

The

than was here done.

letter then proceeds: "After making out note in addition to the marriage relation, the subof testimony, send it to us for submission in mission was abortive; the respondent not convacation. We will attend to having it submit-senting. This contention is responded to for The note of testimony recites, preliminarily, the submission of the cause in vacation. By the act approved De cember 14, 1898 (Gen. Acts 1898-99, p. 118), now Code 1907, § 3164, the submission of, and adjudication in, divorce cases in vacation was provided; certain conditions being laid upon the power and right to so submit and adjudge. It is now objected for appellant that this decree is null, because no such written request was filed with the register as the cited statute required.

Ac

appellee by the citation of Code 1907, § 3808, wherein it is provided that, "upon granting a divorce, the court" may commit and regulate the custody, education, etc., of the children of the marriage as therein stipulated. It is Insisted for appellant that the statute does not commit the exercise of the powers enumerated by the chancellor, but contemplates their exercise by the court as distinguished from him. And in support of this contention attention is called to the fact that section 3808 was in existence many years before the The only stipulation with respect to the act of 1898-99 was passed. By express promode of expression of the desire for submis- vision of Code 1907, § 3164, a decree in a dision in vacation is that it shall be in writing vorce case, rendered in vacation in accordand shall be filed with the clerk. The legal ance with its terms, is as binding and final term "file" has been treated here in Phillips as if rendered in term time. The effect of v. Beene's Adm'r, 38 Ala. 248, and it was then this provision forbids, in such cases, any disruled, and with obvious correctness we think, tinguishing between the court and the chanthat a paper was filed when it was delivered cellor. The act of the latter is the act of the to the proper official charged with the duty former in uncontested divorce cases. of filing the paper and with making the ap-cordingly the inquiry is thus resolved: Did propriate indorsement thereon. It is evident the inclusion of the averment and prayer for that the act of affixing the proper indorse- relief in respect of the custody of the chilment on the paper is a duty to be performed dren of the marriage then being sought to be by the officer, and with a failure of the officer annulled deprive the proceeding of its characto seasonably and properly indorse the paper ter as a "divorce case," as provided in section the party delivering it cannot be prejudiced. He has done all that is required when he We do not think the statutes should be givdelivers the paper to the proper official. Phil- en a construction that would require an aflips v. Beene's Adm'r, supra. The register firmative response to the stated inquiry. The and chancellor took this paper to be a "re- disposition of the children of a dissolved unquest" within the statute. By no sort of con-ion is too intimately related to the major act struction can the paper be read otherwise than as evincing the desire of complainant's solicitors of record that the cause be submitted in vacation. It so declares. It is true the paper does not follow the language of the statute in respect of a request to deliver the papers in the cause to the chancellor; but it is requested that the papers be sent to com

3164?

of dissolution to permit the limitation of the term "divorce cases" to those only where dissolution was the sole prayer of the bill. In the anonymous case reported in 55 Ala. 428, noting the treatment of chancery's jurisdiction in respect of the disposition and protec tion of children in Hansford v. Hansford, 10 Ala. 561, among other of our decisions (see,

[Ed. Note.--For other cases, see Life Estates, Cent. Dig. §§ 43, 44; Dec. Dig. § 23.*]

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Ejectment by Anna Rickert against Kate Touart. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

L. H. & E. W. Faith and Tisdale J. Tou

art, for appellant. Gregory L. & H. T. Smith, for appellee.

DOWDELL, C. J. This is a statutory action of ejectment to recover possession of certain real estate described in the complaint and situate in the city of Mobile. Both parties claim to derive title from the same source

and protection is accorded, in discussion, an [took place before the expiration of five years' intimacy and relation to the marriage state possession by the tenant. that leaves us no room for real doubt that "divorce cases" comprehends, in relative legislation, the disposition and protection of the offspring as naturally incident to the power of dissolution of the marriage relation. If the contrary view was adopted, we would impute to the Legislature the very improbable purpose to favor in submission and adjudication a cause for divorce not involving the disposition of offspring, and of denying to another cause involving such disposition that favor. If a substantial reason for such a discrimination appeared, more hesitation in construing the statute as we do might arise. But it is hardly imaginable that the lawmakers intended to hinder in adjudication the minor question, viz., the disposition of the offspring, and to favor the speedy decision of the major, from one Mary Rodrigues. The appellee, viz., that of dissolution of the marriage state. plaintiff in the court below, claims title as Aside from these considerations, our condevisee under the will of said Mary Rodclusion accords, we think, with the general rigues, made in 1879, and admitted to prolegislative policy to give the opportunity for bate in April, 1907, seven years after the more prompt judgments in uncontested di- death of said Mary, which occurred on Auvorce cases; whereas, if the contrary view gust 25, 1900. The appellant, defendant bewas approved, the delay in such cases be- low, claims title under two conveyances purtween terms of court would ensue from the porting to have been made by said Mary mere fact that offspring were sought to be Rodrigues, both bearing date, August 23, affected by the judgment dissolving the mar-1900, and recorded in the office of the probate riage relation. In short, under these statutes, "divorce cases" include those causes where dissolution and the usual incidents thereof are sought in an appropriate bill. The decree is affirmed. Affirmed.

judge of Mobile county on August 24, 1900, one being made to W. J. Wall for one piece of land, and the other to Margaret Wall for the remaining land sued for, a deed of conveyance by said Margaret Wall and W. J. Wall to Louis Touart, bearing date in March, 1903, and the will of said Louis Touart, duly

DOWDELL, C. J., and SIMPSON and probated, devising the land to appellant. MAYFIELD, JJ., concur.

(163 Ala. 362)

TOUART v. RICKERT. (Supreme Court of Alabama. Nov. 10, 1909.) 1. DEEDS (8 78*) — VALIDITY - FRAUD-QUESTION FOR JURY.

Where the recitals in the acknowledgment of a deed are contradicted by evidence that the grantor at the time of its execution was in a state of coma, and the attesting witnesses and notary public are dead, the validity of the deed is for the jury.

[Ed. Note.-For other cases, see Deeds, Cent. Dig. 8 648; Dec. Dig. § 78.*]

2. WILLS (§ 417*)-PASSING OF TITLE-TIME.

The interest devised by will takes effect immediately on the death of testator, though the will is not probated until several years later. [Ed. Note.-For other cases, see Wills, Cent. Dig. 896; Dec. Dig. 417.*]

3. LIFE ESTATES (8 23*)-PURCHASER FROM LIFE TENANT-TITLE ACQUIRED.

Margaret Wall was the sister and only heir at law of said Mary Rodrigues, and W. J. Wall was the only living descendant of the said Margaret, who died in March or April, 1906. The mother of the appellee, Anna Rickert, was a cousin of the said Mary Rodrigues.

There is no dispute that the land in question belonged to Mary Rodrigues on August 23d, the date of the several mentioned deeds. The validity of the two deeds of August 23d, introduced in evidence was a controverted question. These two deeds, as shown upon their face, were executed by the grantor's making her mark, and were attested by two witnesses, J. M. Henderson and J. G. Thomas, who subscribed their names as such. An acknowledgment of the grantor (in statutory form) before J. M. Henderson as a notary public, with notarial seal affixed, was also attached, of date of the execution of the deeds. The deeds were self-proving under the statute, and hence were introduced in evidence without further proof of their execution.

Code 1907, § 3385, providing that wills creating estates in remainder after an estate for life are void as against creditors of the life tenant in possession, after possession of Both of the attesting witnesses, five years by him, unless the will is recorded, Henderson and Thomas, the former being aletc., affords no protection to a purchaser from a life tenant in possession under a will as so the notary public who took the acknowlagainst the remainderman, where the purchase edgment, were dead at the time of the trial

The validity of the deeds was attacked upon | it becomes a question for the jury, and the the ground of fraud. The only two witnesses general charge should not be given for eiwho testified as to the execution of the deeds ther party. were the appellee and her husband. They both testified that at the time of the signing of the deeds Mary Rodrigues, the grantor, was lying upon her bed in a state of coma, unconscious and recognizing no one; that J. M. Henderson, the notary public, went to her bedside, and, after having read over the deed to her, placed the pen in her hand, and, taking her hand in his, made her mark to the deed and then gently laid her hand down. They testified as to who were present in the room at the time, and that among those present was Dr. J. G. Thomas, the family physician, the same whose name is signed to the deeds as one of the attesting witnesses. This testimony was undisputed by any other witness testifying in the case.

On the theory that the testimony of these two witnesses was undisputed by the testimony of any other witness, the trial court, upon request in writing, gave the general affirmative charge in favor of the appellee, the plaintiff, which in effect instructed the jury that the deeds introduced in evidence were invalid, and consequently passed no title, and that for the reason that at the time of their execution the grantor was in a state of coma and not conscious of what was being done. If as a matter of fact the alleged grantor was at the time unconscious, being in a state of coma, then as a matter of law there was no execution by her. But whether or not she was in such a state or condition was a question for the determination of the jury, not solely upon the testimony of the appellee and her husband, but upon the whole

evidence.

Under the rule laid down in the recent case

In this case the will under which the appellee claimed title was not probated until seven years after the death of Mary Rodrigues, the testatrix. Nevertheless the interest devised by the will to the appellee took effect immediately upon the death of the testatrix. This principle is clearly settled by the case of Goodman v. Winter, 64 Ala. 410, 38 Am. Rep. 13. Section 1008 of the Code of 1896, which is the same as section 3385 of our present Code, affords no protection to a purchaser from the life tenant in possession under a will, as against the remainderman, before the expiration of five years of possession Whether a purchaser, as by such tenant. contradistinguished from a creditor, comes within the meaning and protection of the statute, it is not necessary to decide in this Here the life tenant had been in poscase. session only three years at the time defendant's testator, Louis Touart, deceased, under whose will she claims as devisee, purchased The statute certainly from the life tenant. could not apply to him, and he took no greater interest by his purchase than the life tenant possessed. Sheridan v. Schimpf, 120 Nor is the statute Ala. 475, 24 South. 940.

a statute of limitations, where the doctrine of a tacking of possessions to complete a bar would apply.

There is no merit in the contention of an estoppel growing out of the conduct of the plaintiff in accepting a deed from Margaret Wall to a distinct piece of land, because of the fact that the land was conveyed to Margaret Wall by a separate deed from Mary Rodrigues at the time the deeds assailed were made.

Reversed and remanded.

SIMPSON, MCCLELLAN, and MAYFIELD JJ., concur.

(163 Ala. 215) MARTIN v. UNION SPRINGS & N. RY. CO. Dec. 16, 1909.) (Supreme Court of Alabama.

For the error in giving the affirmative of Russell et al. v. Holman, 156 Ala. 432, 47 charge at the request of plaintiff, the judgSouth. 205, the certificate of the notary pub-ment is reversed, and the cause remanded. lic, attached to the deeds, "was entitled to be considered by the jury as evidence of the facts recited therein." The facts recited in the certificate were unquestionably contradicdictory of the testimony of the appellee and her husband as to the unconscious state or condition of the grantor in the deeds, and if that case is to be followed there is no escape from the conclusion that the trial court in the present case committed error in instructing the jury affirmatively in favor of the plaintiff. Moreover, the testimony of the appellee and her husband involved the charge of fraud against the grantee, Margaret Wall, and J. M. Henderson, the certifying officer. In repelling the charge of fraud, it was competent for the jury to consider all of the circumstances attending the execution of the deeds, who were present, what was said and done, the publicity of the act, etc.; and in such case, where the whole evidence affords inferences pro and con as to the main fact,

1. RAILROADS (8 355*)-TRESPASSERS-WALKING ALONG TRACK.

A person who, while walking along a path at the side of a railroad track, was killed at a point not at a crossing or in a street, was a trespasser.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1220; Dec. Dig. § 355.*] 2. RAILROADS ( 394*) INJURY TO PERSON

NEAR RAILROAD TRACK-PLEADING-WAN-
TONNESS.

Counts in a complaint for the death of plaintiff's intestate while walking along a path

near a railroad track, not in a street or at a crossing, alleging that the path was commonly

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes