[Southern Railway Company v. Posten.]
it for thirty or forty feet east of where the mare's body was found; and that fresh bones and blood appeared along that part of the track.
It was shown that the track was straight for a distance, between two hundred and three hundred yards, in each direction from where the mare lay. The one other witness examined testified that he did not see any colt tracks east of the place where the mare was found, but did notice some west of that place. His other testimony was substantially the same as that of the plaintiff. The defendant offered no testimony, but requested the general affirmative charge, which the court refused to give. Defendant excepted to this ruling.
Judgment and verdict were rendered for plaintiff. Defendant appeals, and assigns as error the court's refusal to give the charge as requested by it.
SMITH & WEATHERLY, for appellant, cited Railroad Company v. VanEaton, 11 So. Rep. 111.
M. L. LEATH and McCULLOM & MCGREGOR, contra, cited Kansas City, Memphis & Birmingham R. R. Co. г. Watson, 91 Ala. 483; L. & N. R. R. Co. v. Gentry, 103 Ala. 635; L. & N. R. R. Co. v. Davis, 103 Ala. 661; Alabama Great Southern R. R. Co. v. Boyd, 124 Ala. 525; 27 So. Rep. 408.
DOWDELL, J.-This was an action for damages for the negligent killing by defendant's train of plaintiff's mare and for an injury done to a colt. The cause was tried on the plea of not guilty. The only error assigned is that of the refusal of the court to give the general affirmative charge as requested by defendant. The only evidence offered on the trial was that of the plaintiff and one J. P. Casey, who testified in behalf of the plaintiff. The defendant offered no testimony. Without repeating what was said by these witnesses, we think the facts testified to by them made out a sufficient prima facie case to require the court to submit the question of the negligent killing of the mare and the injury of the colt to the jury. The facts in this case are similar to the facts in the case of the Alabama G. S. R'y. Co. v. Boyd, 124 Ala. 525, and what was there said with reference to the giving or refusal of the general affirmative charge is applicable here; and on the authority of that case the judgment of the circuit court will be affirmed.
INDEX.
1. Conveyance of homestead; when wife's acknowledgment in- sufficient. A certificate of the acknowledgment of the wife and the conveyance of the homestead, that sne signed the same of her own free will and accord without fear, con- straint or "persuasion" of the husband, instead of without "threats" of her husband, as required by the statute regu- lating the alienation of the homestead, as insufficient to di- vest title to the homestead. Marx v. Threet, 340.
1. Pleading and practice; plaintiff not entitled to recover when there is cause of action stated in the complaint. --- Where it is shown upon the face of the complaint itself, that it contains no substantial cause of action, the plaintiff is not entitled to recover, but the court is authorized to render judgment for the defendant, regardless of whether objection was taken to the complaint by demurerr. Jordan v. N., C. & St. L. R., 219.
2. Action upon a contract; what necessary to authorize plaintiff's recovery. In an action of assumpsit, in which the plaintiff seeks to recover for cross ties furnished to a railroad com- pany under a special contract, where it is shown that said contract provided that the defendant was to pay for such ties as was inspected and accepted by it, and the evidence shows that the ties, for the delivery of which the plaintiff seeks to recover, were not accepted by the defendant, the plaintiff can not maintain his action, and the defendant is entitled to the general affirmative charge. So. R. Co. v. Spragins, 319.
3. Damages; mental suffering; relationship. Where the father of a sick child sends a telegram summoning his brother-in- law to the child's bedside, and on account of the negligence of the company the sendee, who is the child's uncle, does not receive the telegram in time to reach the child before its death, and the father sues for damages for mental anguish and suffering, there can be no recovery, because there does not exist between the sender, the sendee, and the person concerning whom the message is sent that close de- gree of relationship from which natural love and affection are presumed.-W. Un. Tel. Co. v. Ayres, 391.
4. Trover; what necessary to maintain suit. In order to maintain an action of trover, the plaintiff must, at the time of the in- stitution of the suit, have either a general or special property in the personal property alleged to have been converted, and if the property right claimed by plaintiff is special or quali- fied, plaintiff must have, in adition thereto, the right of im- mediate possession. -Henderson v. Pilley, 548.
AD QUOD DAMNUM.
See EMINENT DOMAIN. ADVERSE POSSESSION.
1. Relation of mortgagee and mortgagor; right of mortgagor to set up adverse possession after foreclosure of mortgage. While a mortgagor does not hold adversely, but holds in subordination, to the title of the mortgagee, and an alienee
ADVERSE POSSESSION-Continued.
of the mortgagor holds in the same right and can assert no higher or independent title, still, after the foreclosure of the mortgage under the power of sale contained therein, the mortgage becomes functus, and as against a purchaser at said foreclosure sale, or his alienee, the mortgagor re- maining in possession, or his alienee, may hold said lands adversely from the date of said sale, and can set up such adverse possession as a defense to a subsequent action of ejectment; and it is immaterial, in the application of this principle, that the mortgagee became the purchaser at the foreclosure sale, he being authorized thereto by the mort- gage. Garren v. Fields, 304.
2. Claim suit; when title vested by adverse possession.-In a claim suit growing out of an action of detinue brought by the assignee of a vendor in a conditional sale against one claiming under his vendee, to recover the possession of a piano, testimony showing that after default in the payment of one of the installments of the price of the piano, which gave the vendor the right to re-take the prop- erty, the vendee mortgaged the property to a third person, who thereafter foreclosed said mortgage and became the purchaser of said property, and that the claimant derived title from such purchaser under the mortgage, and more than six years had elapsed since the foreclosure sale be- fore the institution of the action of detinue, and the pur- chaser and those claiming under him had claimed to own the property, is admissible in evidence; since under such facts the ownership of the property sued for became divested out of the original vendor in the conditional sale and be- came vested in the claimant. Grunewald Co. v. Copeland, 345.
3. Ejectment; adverse possession. The possession by a co-termin- ous owner up to the line believed to be the true line, is not presumably adverse, but may become so if the claimant claims it as a true line and holds the property up to it, claiming it as his own.-Barrett v. Kelly, 378.
4. Same; same. -Actual possession of a part of the tract under cover of title extending to the whole, is sufficient posses- sion as to the whole tract, to ripen into title by lapse of time; and this possession may be held by and through a tenant. Ib. 378.
1. Agency; when sufficiently shown to be binding upon principal. Where a loan is negotiated through an agent, who declares himself to be the agent of the principal, and the principal accepts the note and mortgage and subsequently forecloses the same, the agency of the representative is sufficiently shown, and knowledge and notice acquired by him in negoti- ating the loan with the wife that the wife was the surety of her husband, is binding upon his principal. Russell v. Peavy, 563.
2. Fire insurance; agency; power to waive; condition. An insur- ance agent with authority to write insurance, collect prem- iums, and act generally as the company's agent for such pur- poses, and to make insurance contracts, has power to waive a condition in a policy written by him providing that any change in the title or possession of the property would avoid the policy unless an agreement that such change might be made was indorsed on the policy. Con. F. Ins. Co. v. Brooks, 614.
3. Same; same; termination of agency. Where a general insur- ance agent, with authority to waive a condition in a fire policy forbidding a change in interest or possession, ceased
to be the company's agent, a waiver by him of such condi- tion, after the termination of the agency is binding on the company, where the insured in good faith relied on his auth- ority, and had no notice or knowledge of the termination of the agency.-Ib. 614.
4. Principal and agent; responsibility of agent for loss by burg. lary of money collected.-Where, in the absence of any spe- cial agreement to act as the insurer of monies collected by him, an agent for the collection of money, who not being able to remit it the day it was collected, locked it up in an iron safe which belonged to his principal, and which he found in the principal's office when he took charge thereof as agent, and then fastened the doors and windows of the office and left it for the night, such agent is not lacking in the exercise of ordinary diligence, so as to make him responsible for the loss of the money that night by burglary; and such facts pre- sent a defense to the recovery by the principal of such money from said agent.-L. & N. R. R. Co. v. Buffington, 620.
ALTERATION OF INSTRUMENTS.
1. Deed; alteration after delivery invalid.-When a deed has been fully executed and delivered, it passes the title to the grantee therein, which can not thereafter be divested by mere change in the deed itself, with or without the consent of the grantee. Gulf Red Cedar L. Co. v. O'Neal, 117.
Alimony; petition for collection under a former decree.—Where a court of equity having granted a decree for divorce and alimony, reserving the power to control the enforcement and execution of its decree, renders a decree for unpaid alimony, upon which decree execution is issued, and the decree, on ac- count of the poverty of the defendant, provides that no other or further execution shall be issued until the further order of the court, and complainant files a petition for collection of unpaid alimony, and the petition does not aver any change in the financial condition of the defendant since the rendi- tion of the last decree, or that he is able to further pay ali- mony, and the answer of the defendant shows a continuation of his poverty-stricken condition, it is proper to dismiss the petition. Jones v. Jones, 443.
See DESCRIPTION OF PROPERTY.
Amendment of complaint.-Where a statutory action in the na- ture of ejectment is brought to recover ands held adversely by defendant, the complaint, if brought in the name of the grantee, cannot be amended by adding as parties plaintiff the grantors in deed under which plaintiff claims title.-Reese v. Reaves, 195.
Complaint; amendment.-In an action for forcible entry and unlawful detainer, where the premises are described in the complaint by giving the fractional parts of the section, township and range, the same may be amended by setting out the metes and bounds, in order to make more specific and certain the description of the premises involved in the suit. Bibby v. Thomas, 350.
Amendments; when not authorized;
discontinuance.-While our statute of amendments is exceedingly liberal in its
terms, it has never been held to authorized the striking out of a sole party plaintiff and the substitution of another; and upon this being done such substitution will work a discon- tinuance of the cause. Vinegar Bend L. Co. v. Chicago T. & T. Co., 411.
4. Same; same; what a departure and not allowed.-Where a suit is brought in the name of a corporation as party plain- tiff, the amendment of the complaint by substituting for the plaintiff corporation the name of another as assignee of said corporation, is a departure and can not be allowed; since it introduces an entirely new party plaintiff. Ib. 411.
1. Trial and its incidents; when finding upon facts will not be reviewed on appeal. -Where a criminal case is tried by a court without a jury and there is no agreed statement of facts or any special finding of the facts by the judge, and no request for such finding, the conclusions of the judge upon the facts stand as a verdict of the jury and will not be revised on appeal. Norille v. State, 35.
2. Appointment of receiver; appeal will lie to Supreme Court from decree of the chancellor revoking an order by the regis- ter appointing receiver.-An appeal will lie to the Supreme Court from a decree rendered by the chancellor on appeal to him, revoking and annulling the order of the register ap- pointing a receiver without notice. Meyer v. Thomas, 111. 3. Appointment of receiver; Supreme Court will not modify a de- cree of chancellor annulling erroneous appointment of re- ceiver.-Where upon the filing of a bill asking for the fore- closure of a mortgage and the appointment of a receiver, the register erroneously appoints a receiver as prayed for with- out notice, and on appeal to the chancellor such order of the register is annulled and vacated and the receiver is directed to restore the possession of the property to the defendants from whom he received it, on an appeal to the Supreme Court from the decree of the chancellor vacating and annul- ling the order of the register making the appointment, this court will not modify the decree of the chancellor directing the receiver to restore the property of the defendant, so as to order the receiver to sell and apply the proceeds first to the payment of the defendant, and the balance, if any, to the complainant in the bill. Ib. 111.
4. Pleading and practice; when error in sustaining demurrer with- out injury and will not work a reversal.-Where the facts alleged in a special plea can be introduced in evidence under the plea of the general issue, the erroneous sustaining of a demurrer to a special plea is error without injury, and will not work a reversal of a judgment rendered in favor of the plaintiff. (TYSON, J., dissenting, holds that in such case it must affirmatively appear from the record that the defend- ant, under the plea of the general issue, had the full benefit of the facts alleged in his special plea to which the demurrer was improperly sustained.-L. & N. R. R. Co. v. Hall, 161.
5. Bill of exceptions; when properly stricken from the file. - Where a bill of exceptions contains a statement of everything that was done on the trial, and sets forth every word uttered by witnesses, attorneys, and judge, while the cause was being tried, and no effort is made to present the statements of the testimony or of its tendencies, but it is given verbatim as testified to by the witnesses, and the rulings against the party in whose favor the judgment was rendered is given, as well
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