[Dean, Admr. et al v. Oliver.] Ala. 101; Echols v. Hubbard, 90 Ala. 311; Code of 1896, § 2127. W. T. HENDON, contra, cited Baker v. Maxwell, 99 Ala. 563; Smith v. Gillam, 80 Ala. 300; Bizzell v. Nix, 60 Ala. 283. HARALSON, J.-The bill is not filed to enforce a vendor's lien, to compel payment of unpaid purchase price of land which had been conveyed, nor to remove another deed as a cloud on complainant's title, but, from its frame and prayer it is one for the rescission of complainant's own deed to defendant's intestate, A. W. Oliver, on account of the fraud alleged in its procure ment. In B. W. & E. Co. v. E. L. Co., 93 Ala. 549, it is said: "A promise, strictly speaking, is not a representation. The failure to make it good may give a cause of action, but it is not a false representation, which will authorize the rescission of a contract. * * * The making of a promise, and having no intention at the time of performing it, constitutes a fraud for which a contract may be rescinded." It was evidently under this authority that complainant, who had originally alleged no fraud, amended his bill to meet demurrer on that ground, alleging that "said A. W. Oliver, at the time he made said pormise [to convey 20 acres of land of his own to complainant as a consideration for the conveyance of said 10 acres by complainant to him], had no intention of performing said promise, and no part of said promise has been performed."-Baker v. Maxwell, 99 Ala. 558; Manning v. Pippen, 95 Ala. 537. In the latter case, the principle was announced, that if a person procures the execution of a conveyance of land by promising to devise the land by will to the grantor, having at the time no intention to do so, and afterwards dies intestate, the fraud will vitiate the transaction and a court of equity will grant relief against the conveyance; but the fraud must be established by clear and convincing evidence, and relief must be sought seasonably after the discovery of the fraud. Equity in such a case, to accomplish its ends, declares the grantee to be a trustee ex maleficio, [Dean, Admr. et al v. Oliver.] and will devest the title for the fraud in procuring it. Manning v. Pippen, 86 Ala. 357. The right to rescind a contract because of fraud or fraudulent representations, to be available, must be asserted with promptness. He who would rescind must act promptly, both to ascertain the fraud, and in the assertion of his right to rescind. There must be no unnecessary delay as to either. Allgood r. Bank of Piedmont, 115 Ala. 418; Coleman v. Bank, 115 Ala. 307. Here, at the time of the alleged trade for the exchange of lands, as the bill shows, the complainant executed his deed to Oliver, and delivered possession to him contemporaneously with the delivery of the deed. Why the purchaser, Oliver, did not convey the 20 acres to complainant agreed to be conveyed by him, in exchange of lands, and as consideration for the conveyance he received, is not shown; nor is it shown that complainant, in the lifetime of Oliver, who died in July, 1897, about two years and eight months after the trade between them, ever requested said Oliver to execute a conveyance to him, or that he ever refused to do so. It further appears, that the defendant, Dean, was duly appointed administrator of the estate of said Oliver, on the 24th August, 1897, and, afterwards, proceeded in the probate court to have the lands of his intestate, including the ten acres mentioned in the bill, sold for the payment of the debts of the deceased, and on the 12th of November, 1898, they were sold for that purpose under the orders of said court, at which sale, the defendant, J. T. Blackburn, became the purchaser of said land under said decree. It does not appear, that prior to the day of said sale, the complainant had ever made known to the administrator, Dean, that he had any claim to said land, nor that he offered in any way to him, to rescind the sale, by which Dean's intestate procured title to the same from complainant. On the day of sale, all that is shown that complainant did, was to give notice, that he owned and was in possession of said land, and whoever purchased it would buy a law suit. He did not, then, make known his rights to the land, except in the general way that he owned it, nor did he, on the occasion, make known his alleged right [Bluthenthal & Bickert v. Trager & Co. et al.] to rescission of his trade with Oliver, on account of the alleged fraud the latter had practiced on him; and this was over four years after the date of his conveyance to the deceased. Prior to that date, it does not appear, that Dean, the administrator, ever had any knowledge or actual notice, that complainant set up any claim to the land in question. The complainant does not allege when he first ascertained that Dean's intestate, at the time he received from him said conveyance to the land in question, had no intention to execute a deed to complainant to the 20 acres he promised to convey. Nothing besides the bald averment, that at the time he made said promise he had no intention of performing it, appears. Under all these conditions the complainant has failed to make it appear that he acted with reasonable diligence to ascertain the alleged fraud, and to avail himself of a rescission in consequence of it.-Authorities supra. From the averment of facts, the bill fails on its face to show equity, and it being manifest from what appears that the complainant is not entitled to equitable relief, the motion to dismiss on that ground should have been sustained. A decree will be here rendered reversing the decree below and dismissing the bill for want of equity. Blackburn v. Fitzgerald, 130 Ala. 584. Reversed and rendered. Bluthenthal & Bickert v. Trager & Co. et al. Bill in Equity to have Mortgage declared General As signment. 1. Constitutional law; construction of statute; general assignment. While the portion of section 2158 of the Code of 1896, which was inserted by the Code Commissioner in pursuance of the direction of the legislature as being amendatory of the section as it theretofore stood, (Acts of 1896-97, pp. 1089-90), is unconstitutional and void, yet that portion of said section [Bluthentnal & Bickert v. Trager & Co. et al.] which embraces the act of February 21, 1893, (Acts 1892-93, p. 1046), and was adopted into the code by the act of adopttion, is valid and operative, and rights arising thereunder can be enforced. APPEAL from the City Court of Gadsden, in Equity. Heard before the Hon. John H. DISQUE. The bill in this case was filed by the appellees against the appellants, Bluthenthal & Bickert and Little & Hays; and sought to have a mortgage executed by Little & Hays to Bluthenthal & Bickert declared a general assignment, on the ground that said mortgage conveyed substantially all of the property of the mortgagors. The principal contention of the defendants and the facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainants were entitled to the relief prayed for, and ordered accordingly. From this decree the defendants appeal, and assign the rendition thereof as error. BURNETT & CULLI, for appellant, cited Ordway v. White, 80 Ala. 244; Parsons v. Johnson, 84 Ala. 254; Inman v. Schloss, 122 Ala. 461; Bank v. Kiser Co., 119 Ala. 194. No counsel marked as appearing for appellee. DOWDELL, J.-The bill in this case was filed by appellees under section 2158 of the Code of 1896, which relates to general assignments. It is contended by counsel for appellants that this statute was declared unconstitutional in the case of Builders' & Painters' Supply Co. v. Lucas & Co., 119 Ala. 202, and therefore void. In that case it was said by this court, having then under consideration the act of February 16, 1897, (Acts, 189697, pp. 1089-90), and which was there declared void as being offensive to section 2 of Art. IV of the constitution: "Since the rendition of the judgment, and the filing of the bill, the Code of 1896 has become operative, [Bluthenthal & Bickert v. Trager & Co. et al.] into which the enactment is substantially introducedthe two first sections forming part of the civil code (§ 2158), and the third section part of the criminal code (§ 4759). If this enactment had formed parts of the Code at the time of its adoption, all infirmities of legislative procedure in its original enactment would have been cured.-Bates v. State, 63 Ala. 30. But it was not then parts of the Code, and was not re-enacted as parts of it. It was incorporated or introduced by the commissioner, in obedience to the legislative mandate that all laws of enactment at the session of the adoption of the Code, should be introduced therein. Whatever of validity such laws may have is derived from their original enactment, and not from their introduction, or the manner of their introduction into the Code." It does not follow from this, that section 2158 as it now stands is invalid in whole, but on the contrary, whatever part of that section as now contained in the published volume of the Code, that was in the Code at the time of the act of adoption, is preserved, and is still operative, by force of the act of adoption, and only such parts, or so much of it, as was introduced by the commissioner, is invalid and inoperative. The manuscript volume of the Code, on file in the office of the Secretary of State, which was adopted by the act of February 16, 1897, contains the act of February 21, 1893, (Acts 1892-93, p. 1046), and is copied into the manuscript volume in the precise language of the original enactment. And it may be here added, that the act of February 21, 1893, as adopted into the Code, is embraced in its entirety in section 2158 of the published volume of the Code. Our conclusion is, that so much of section 2158 as embraces the act of February 21, 1893, which was adopted into the Code by the act of adoption, is valid and operative, and only so much as was introduced into that section by the commissioner is invalid. After a careful consideration of the evidence we are of the opinion that the chancellor's conclusion on the facts was right, and we can see no reason to disturb his decree. The decree is affirmed. |