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Report of cases argued and determined in the Supreme court of Alabama (Volume 72) online

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ENTERED according to act of Congress, in the year 1884, by

In the office of the Librarian of Congress at Washington, I>. C.




i.i:<)R<;E \V. STONE. A - K-IATK JI-STU-K. M'iniij<>ni>fii, Ala.
\\. M. SOM EUVI l.LE. Ai><ici VTK .Ji'srn-K. T*l;<il<ix>i, Ala.
H. C. TOMPKIXS, ATTOKNKY GKNKKAJ., .Vo///</o//</-/-//, .I/".
JOHN W. A. SAXFORD, CI.KKK, Mn //./" <""//. -'"
JUXIUS M. RIOGS, MARSHAL. .V,/,i///.;,,i,-,-./, .I/".


Ala. Gold Life Insurance Co. ats.

Henderson 32

Ala. Great Southern Railroad

Co. v. Hawk 112

Alexander v. Pollock & Co 137

Allen v. Walker 456

Allgood v. Ratliff 119

Anderson v. The State 187

Atkinson v. Jones 248

Bailey ats. Irwin 467

v. 505

Baker v. Keith 121

ats. Sawyers 49

Bank of Mobile ats. Boykin 262

Bankhead ats. Shackclford 476

Banks ats. Winter 409

Banks & Wood v. The State 522

Bauennan v. The State 252

Beale v. Posey 323

Beasley ats. Russell 190

Beasoii v. The State 191

Bell & Co. ats. Hurst & McWhor-

ter 336

Bernstein v. Humes 546

Berry, Demoville & Co. v. So-
well 14

Binford's Adin'r v. Dement 491

BJanton ats. Hatchett 423

B'olling & Gamble ats. Pearoe. .341

Boykin v. Bank of Mobile 262

Boyle v. Williams 351

Broughton ats. Butts 294

Buchanan v. Buchanan 55

Burch (Warren &) ats. Gachet. .288

Burleson ats. Humphreys 1

Butler v. The State 179

Butts v. Broughton 295

Caldwell & Riddle ats. St. Clair 527

Callan v. McDaniel 5)6

Campbell ats. Quarles 64

City Council of Montgomery v.

Wright 411

Cohen v. Wollner, Hirschberg

& Co 233

Cole v. The State 216

Collins (State, e.r rel.) ats. Nich-
olson 176

Corbett ats. Ward 438

Crowder ats. Moon's Adm'r . . 79

Crowder v. Morgan 535

Dane v. Glennon 160

DeBardelaben ats. Stoudenmire . 300
Dement ats. Binford's Adm'r. .491

Demoville & Co. v. Sowell 14

Denson ats. Dothard 541

Dickerson ats. Flexner & Lich-

ten 318

Dorgan v. The State 173

Dothard v. Denson 541

Drewry ats. Jones 311

Dunklin, EJC parte 241

Eslava v. Farley 214

E.r parte Dunklin 241

O'Neal 560

Robinson 389

Farley ats. Eslava 214

v. Riordon 128

v. The State 170

Flexner & Lichten v. Dickerson . 318

Flinn v. Turner 532

Fowler ats. Stovall 77

Foxwprth v. White 224

Frothingham at*. Sloan 589

Gayle's Adm'r v. Johnston . . .254

Gachet v. Warren & Burch 288

Gamble & Boiling ats. Pearce .341

Gilchrist v. Shackelford 7

Gilman Sons & Co. v. N. O. &

S. Railroad Co 566

Glennon ats. Dane 160

Goetter, Weil & Co. ats. Weis. .259

Gordon ats. Nordlinger 239

ats. Thompson 455

Graves ate. Pollak & Co 347

Hall ats. Martin 587

Harold Brothers & Scott v.

Weaver.... 373

Harris v. Moore 507

Harwell v. Lehman, Durr &. Co.344

Hatchett v. Blanton 423

Hawk ats. Ala. Great Southern

Railroad Co 112

Hayes v. Woods 92

Henderson v. Ala. Gold Life In-
surance Co. . .32



Henderson v. Horton 32

Hendricks v. Hendricks 132

Hirschberg& Co. (Wollner) ats.

Cohen..., 233

Horton ats. Henderson 32

Hubbard v. The State 164

Humes v. Bernstein 546

Humphreys v. Burleson 1

Hurst & McWhorter v. Bell &

Co 336

Insurance Co. (Ala. Gold Life)
ats. Henderson 32

Insurance Co. (PI. anclMer.) v.
Tnnstall 142

Irwin ats. Bailey 505

v. 467

Jenkins ats. Me Williams 480

Johnston ats. Gayle's Adm'r .254

Jones ats. Atkinson 248

v. Drewry 311

ats. McCall .'... .368

ats. Powell 392

Jtmkins v. Lovelace 303

Karsner ats. Kelly 106

Keel v. Larkin. . 493

Keith ats. Baker 121

Kelly v. Karsner 106

ats. O'Neal 559

v. The State 244

Kicker ats. Patterson 406

King ats. Martin 354

Lake v. Security Loan Associa-
tion 207

Lane & Bodley Co. ats. White-
head <& Son". 39

Lanier v. Richardson 134

Larkin ats. Keel 493

Lawlerats. Sullivan 68, 72, 74

Lehman, Durr & Co. ats. Har-
well 344

Lehman, Durr & Co. ats. Robin-
son 401

Lichten (Flexner &) v. Dicker-
son 318

Life Association of America v.

Neville 517

Lipscomb v. McClellan 151

Lovelace ats. Junkins 303

Lyne's Adm'r v. Wann 43


Martin v. Hall 587

v. King 354

v. Tally 23

Matthews v. McDade 377

McCall v. Jones 368

McCarthy v. Nicrosi 332

McClellan ats. Lipscomb 151

McDade ats. Matthews 377

Mrlhmiel ats. Callan ( .ti;

Me Williams v. Jenkins 480

Memphis & Charleston Railroad

Co. v. Norwood . 503

Memphis & Charleston Railroad

Co. v. Whorley 20

Micou v. Moses "Brothers 4:;(>

Montgomery (City Council) v.

Wright " 411

Montgomery & Mobile Railroad

Co. v. Wilkinson 2SC.

Montgomery Southern Railway

Co. v. SaVre '.443

Moog ats. Strung 460

v. Talcott SOf^

Moon's Adm'r v. Crowder 79

Moore ats. Harris 507

Morgan ats. Crowder 535

Moses Brothers ats. Micou . . . 4.'!i

Neville ats. Life Association of

America . 517

Newberry ats. Wiggins 240

Nicholson v. The "State 176

Nicrosi ats. McCarthy 332

Nininger v. Norwood 277

Nordlinger v. Gordon 239

Norwood v. Memphis & Charles-
ton Railroad Co 563

Norwood ats. Nininger 277

O'Neal, E.r />r
v. Kelly


Parker v. The State 181

Patterson v. Kicker 406

Pearce v. Gamble & Boiling. . . .341

Peebles ats. Rogers 529

Pinney v. Werborn 58

Planters' &. Merchants' Insur-
ance Co. v. Tunstall 142

Pollak & Co. v. Graves 347

Pollock &Co. ats. Alexander . .137

Posey ats. Beale 323

Poteete v. The State .558

Powell v. Jones 392

v. The State 194

Quarles v. Campbell 64

Railroad Co. (Ala. Gt. So.) v.
Hawk 112

Railroad Co. (M. & C.) ats. Nor-
wood 563

Railroad Co. (M & C.) ats.Whor-
lev 20

Railroad Co. (M. & M.) v. AVil-

Rkinson 286

ailroad Co. (Mont. Southern)
v. Sayre 443



Railroad Co. fN. O. & S. ats.

< iiliuan, Sons iv ( ' ....... 566

Railroad Co. (S. * N. Ala.)

v. Wood ................... 4~>1

KatliU'v. Allgood .............. 119

Kichardson ats. Lanier ......... 134

Kiddle Calduell A: ats. St.

Clair .................. .->27

Riordon ats. Farley ......... 12^

Robinson, I-'. * part* ............ 389

Y. Lehman, Durr & Co .401
It.-jers \. peeiie> ............. 529

Russell v. Beasley ............ 190

v. Tlu- State ........... 222

Sale A: Co. ats. Totten & Bro. .488
Sawyers v. Raker ............. 4!

Sayre v. .Montgomery Southern
Railroad Co ...... " .......... 443

Security Loan Association ats.
Lake'. ................ l>07

Shackelford v. Bankhead ...... 47C,

ats. (iilchrist .......... 7

Sloan v. Frothinirham ">>'.'

South iV; N^rth Ala. Railroad Co.
v. Wood .................... 451

So\vell at>. I'.erry, Pemovil'.e t v
Co .......... ..14

State ats. Anderson .......... 1S7

Banks* Wood ..... 5>

Bauerman .......... I'-'c'

Ili-ason ............. 191

Butler ............. 179

Cole ............... 216

I'-i-iran ............. 173

Farley .............. 170

Hubbard ............ 164

Kelly .............. 244

Nicholson ........... 17ti

Parker .............. 181

I'.-'.-ete .............. 588

StolH- ............. ISO

Sylvester ........ 201

I'l.denvood ____ 22ii

Walker .............. 218

Washington ........ 272

White.." ..l!>o

St. Clair ats. Caldwell * Riddl-..'27
Stone ats. The State is:>

Stoiideiiniire v. I>eI5ardelal>en..300
Stovall v. Fowler . 77

Strau- v. M<.o- .460

Sullivan v. Lawler 08, 72, 74

Sylvester v. The State 201

Taleott ats. Moo-. 3Q

Tally ats. Martin 2: 1

Thompson v. < iordoii 455

Toin]>kins v. Stone 185

Totten & Bro. v. Sale A: Co 488

Tnnstall v. P. * M. Insurance

Co 142

Turner v. Flinn 532

v. Wilkinson 361

Underwood v. The State 220

Walker v. Allen 456

v. The State 218

Wann ats. Lvne's Adm'r 43

Ward v. Corbett 438

Warren ct v. (Jachet 288

Washington v. The State 272

Weaver ats. Harold Brothers &

Scott :;7::

Weis v. Goetter, Weil & Co 259

Werhorn ats. Pinney 58

White ats. Foxworth 224

v. The State 195

Whitehead & Son v. Lane &

Bodley Co 39

Whorley v. M.*C. Railroad Co 20

WiL'irins v. Newl>erry 240

AVilkinson ats. M. i\: M. Rail-
road Co '. 286

Wilkinson ats. Turner 361

Williams ats. Boyle. 351

Winter v. Banks! 409

Wollner, Hirschberg & Co. v.

Cohen 233

Wood ats. S. * N. Ala. Rail-
road Co 4")1

Wood <v Banks v. The State. .V22

Woods ats. Hayes 92

Wi i'_ r ht v. City Council of Mont-
gomery 411





Humphreys v. Burleson.

Bill in Equity l)y Distributee, to correct Errors and Mistakes
in Probate Decree on Settlement of Administrator's Ac-

1. Demurrer ; what grounds available on error. On appeal from a de-
cree sustaining a demurrer to a bill for want of equity, this court will
consider only the causes of demurrer specifically assigned, and will not
regard other defects which are amendable ; at least, when the bill is not
fatally wanting in equity.

2. Equitable relief against settlements in Probate Court. A court of
equity has original jurisdiction, independent of statutory provisions, to
open settlements of administrations had in the Probate Court ; but this
jurisdiction, though well established, is sparingly exercised, and the party
complaining is required to show, by appropriate pleading, not only that
injustice has been done, but also that, by reason of accident, surprise, or
the act or fraud of his adversary, unmixed with negligence on his own
part, he could not have prevented that injustice at the time of the set-

3. Same. When the statutory jurisdiction of the Chancery Court is
invoked, for the correction of errors of law or fact intervening in settle-
ments had in the Probate Court (Code, 3837-39), the errors complained
of must be clearly and certainly pointed out, and it must be made to ap-
pear, by the averment of distinct facts, that such errors were not attrib-
utable to the fault or neglect of the party complaining.

4. Equitable relief against fraud. Fraud vitiates any and every trans-
action into which it enters, even the most solemn contracts, and the judg-
ments or decrees of courts of the highest jurisdiction ; and when a fidu-
ciary relation exists between two persons, which renders it the duty of
one to communicate to the other full information of all facts within'his
knowledge, the failure to do so is a fraud, against which a court of equity
will grant relief.

5. Same, as between distributee and administrator. Where an admin-
istrator, on filing his accounts for settlement, wrote to his sister, who was
a distributee of the estate, and resided in Texas, informing her that her


[Humphreys v. Burleson.]

interest in the estate was a specified sum, about one-fifth of its actual value
in fact, and inclosing a receipt for that sum, to be signed by her, which
would operate as a release, and which was signed and returned to him,
and the money paid ; held, that this was a fraud, against which a court
of equity would grant relief by setting aside the settlement, and that the
administrator could not be heard to say that the distributee, in relying on
his representations, and failing to appear and contest the settlement, was
guilty of negligence or other fault.

APPEAL from the Chancery Court of Morgan.

Heard before the Hon. THOMAS COBBS.

The bill in this case was filed on the 19th August, 1881, by
Mrs. Isabella Humphreys, a married woman residing in Texas,
against Dabney A. Burleson, individually, and as the adminis-
trator of the estate of Jonathan Burleson, deceased, who was the
father of said complainant and defendant ; and sought to set
aside a settlement of said administrator's accounts, which was
made in the Probate Court on the 13th October, -1879, and to
correct errors and mistakes which had intervened in said set-
tlement to the prejudice of the complainant. The chancellor
sustained a demurrer to the bill, for want of equity, on several
grounds specifically assigned, and dismissed it ; and his decree
is now assigned as error. The material facts are stated in the
opinion of the court.

H. A. SHAKPE, for appellant. (1.) If the complainant was
not a party to the probate decree, and is not chargeable with
notice of it, she is not concluded by the decree, and is not
chargeable with any neglect in failing to appear and contest it.
Notice of that settlement was not given to her as required by
law, and is not effective for any purpose. The day set for the
settlement was the llth August, 1879; and the notice given
was of the administrator's "intention" to present his accounts
for allowance on the 13th October, 1879. The provisions of
the statute must be strictly complied with, to charge a non-
resident with constructive notice by publication. Cullum v.
Branch Sank, 23 Ala. 797 ; Borgia v. Durden, 41 Ala. 322 ;
Wright v. Clough, 17 Ala. 490; Hartleys. Bloodgood, 16 Ala.
233 ; Butler v. Butler, 1 1 Ala. 668 ; 27 Wise. 558 ; 39 Wise.
.313 ; 10 Nevada, 370 ; Wade on Notice, 1030. If the record
had shown proper notice, though the recital might be conchi-
sive on a collateral attack, the want of notice might be investi-
gated in equity. Dunklin v. Wilson, 64 Ala. 162 ; Givens v.
Tidmore, 8 Ala. 745 ; Crofts v. Dexter, 8 Ala. 767. (2.) Even
if the complainant had due and proper notice of the settlement,
the allegations of the bill present a case for equitable relief,
both on general principles of law, and under the express pro-
visions of the statute. Chambers v. Crook, 42 Ala. 171, and
cases cited ; Dunklin v. Wilson, 64 Ala. 162 ; Kennedy v. Ken-


1882.] OF ALABAMA. 3

[Humphreys v. Hnrleson.J

nefli/. 'J Ala. .">71 : Towmend & Mittiken v. Cowles, 31 Ala. 428 ;
5 Ala. ~>M; Bishop on Contracts, 'I'll. The defendant's mis-
representations, though innocently made, were fraudulent in
legal contemplation. 16 Ala. 785'; 22 Ala. 501 ; 9 Ala. 602.

WATTS & SONS, and C. C. HARRIS, contra. The alleged er-
rors and mistakes in the settlement) against which relief is
sought, were matters within the cognizance of the Probate
Court ; and a party to the settlement can not have equitable
relief as to these matters, unless the allegations of the bill ac-
quit him of all fault or negligence. King v. Smith, 15 Ala.
264: \Vm-iitg v. Lewis, 53 Ala. 615; Otis v. Dargan, 53 Ala.
178. The record shows that the complainant had notice of that
settlement, by publication against her as a non-resident ; and
this was equivalent to actual notice. Stabler v. Cook, 57 Ala. 22.
The allegations of the bill are not sufficient to bring the com-
plainant within the strict rule, which requires that he shall neg-
ative all fault or negligence on his own part. Otis v. Dargan,
and Waring v. Lewis, above cited ; also, Bowden v. Perdue,
59 Ala. 409 ; BotweU v. Townsend, 57 Ala. 308. The bill was
fatally defective, because its allegations show that the complain-
ant's husband was a necessary party, and that the other distrib-
utees of the estate were also necessary parties. Highv. Worley,
32 Ala. 709 ; Cofbert v. Daniel, 32 Ala. 314 ; Hartley v. Blood-
good, 16 Ala. 233.

BRICKELL, C. J. The original bill was filed by the ap-
pellant, one of the heirs at law and next of kin of Jonathan
Burleson, deceased, to open a settlement of the administration
of his estate, had in the Court of Probate, by the appellee as
administrator. The bill is directed to the original and general
jurisdiction of a court of equity to open settlements had in the
Court of Probate, and relieve a party injured by them, when,
by accident, or surprise, or by the act or fraud of his adversary,
he has been prevented from obtaining a fair and full adjudica-
tion of his rights when the settlement was made. And it is
also directed to the special jurisdiction conferred by statute on
courts of equity, to intervene at the instance of a party injured,
for the correction of errors of law or of fact occurring in the
settlement of the estates of decedents had in the Court of Pro-
bate, when the party complaining is free from fault or neglect.
The appellee interposed a demurrer, assigning specially five
causes, which really involve but two propositions : The first is,
that it is not shown affirmatively that the appellant was, by ac-
cident, or surprise, or by the act or fraud of the appellee y pre-
vented from a fair and full adjudication in the Court of Pro-
bate ; the second is, that it is not affirmatively shown that the


[Humphreys v. Burlesbn.]

errors in the settlement, of which complaint is made, occurred
without the fault or neglect of the appellant. The demurrer
was sustained, and from the decree this appeal is taken.

Whether the demurrer ought to have been sustained, on the
causes specifically assigned, is the only question which can now
be considered, though it may be apparent the bill is in other
respects subject to demurrer. P. & M. Mut. Ins. Co. v. $el-
ma Savings Bank, 63 Ala. 585. The husband of the appellant,
it may be, as is now argued, ought to have joined with her in
the suit ; or, it may be, the other heirs at law and next of kin
are necessary parties ; or the errors averred to have occurred in
the settlement, may not be stated with the requisite certainty ;
these are not now questions for consideration. If in these re-
spects, or either of them, the bill is defective, by amendment,
which is matter of right, the defects could have been cured in
the Court of Chancery, if attention had been drawn to them.
Attention not having been directed to them, it would be unjust
to the appellant now to consider them, and affirm a decree ren-
dered upon other causes of demurrer, which, in our judgment,
are not well taken. Such is the rule, at least, when the bill is-
not fatally wanting in equity.

A court of equity has original jurisdiction, independent of
statutory provision, to open settlements of administrations had
in the Court of Probate. Though well established, the juris-
diction is cautiously and sparingly exercised ; and as a condi-
tion precedent to its exercise, it must by appropriate pleading
be shown, not only that injustice has been done, but that, at
the time of the settlement, the party aggrieved could not, in
the Court of Probate, have avoided the injustice, because of
accident, or surprise, or by reason of the act or fraud of the
adverse party, unmixed with fault or negligence on his part.
Otis v. .Dargan, 53 Ala. 178 ; Waring v. Lewis, Ib. 615. To
the exercise of the statutory jurisdiction for the correction of er-
rors of law or fact intervening in such settlements, it is also es-
sential that the errors should be clearly and certainly pointed out,
and, by the averment of distinct facts, it should be made to appear
that such errors are not attributable to the fault or neglect of the
party complaining. Otis v. Dargan, supra; Bosioell v. Town-
send, 57 Ala. 308 ; Bowden v. Perdue, 59 Ala. 409. The maxims
of the law, intended to quiet litigation, to silence controversies, to

five repose to society, security to titles, and to save individuals
rom repeated vexation for the same cause, are esteemed of the
highest importance in the administration of justice, and courts
of equity are as unwilling as courts of law to relax their oper-

But fraud vitiates any and every transaction it may infect ;
the most solemn contracts, and judgments or decrees of courts

1882. OF ALABAMA. 5

[Humphreys v. BurleHon.]

of the highest or most inferior jurisdiction. When a party, by
the misrepresentation, by the fraud or deception of his adver-
sary, is lured into security, or is induced to abstain from enter-
ing into active litigation, there is no real contestation, no real
hearing and adjudication, and the judgment and decree is not
in fact what it may on its face purport to be, the determination
and sentence of the court upon the merits of the controversy.
I Iy the promises or representations of an adversary, a party may
be induced not to attend the sitting of the court; or the true
ft ate of the matters involved may be misrepresented or con-
cealed from him. the relations existing between him and his
adversary rendering it the duty of the latter to communicate
full and truthful information; in these and similar cases, there
is. a< it is expressed by Judge Story, fraud in the concoction of
the judgment or decree, and a court of equity will vacate it.
and i pen the case for a new and fair hearing. 2 Story's Eq.
l.~(7~>: Freeman on Judgments, 489-493; Wells' Res Aa-
//////,-,//,/. 499; Bigelow on Fraud, 70. The relation existing
between these parties, the legal relation that of trustee and
,-,xhii <]tt>' t/'ttxf independent of the natural relation of brother
and sister, rendered it the duty of the appellee to communicate
to the appellant a fair, full, truthful statement of her interest
in the estate lie was administering. Without such statement.
without a full disclosure of every fact necessary to inform the
appellant of the value of her interest, he could not enter into
any transaction with her, from which he was to derive profit,
looking to the extinguishment of her interest, or to his acquisi-
tion ot it. or to his acquittance of liability for it. Ferguson
/. /."/////. ."(4 Ala. 510; Malone v. Kelly , fb. 532.

The application of these principles to the facts in this case,
as averred in the bill, and the truth of the averment the de-
murrer admits. is obvious. Having commenced proceedings in
the ( 'ourt of Probate, for a final settlement of his administra-
tion, the appellee opens a correspondence with the appellant.
his sister, residing in a distant State; inclosing to her a mere
general statement, that her interest in the estate is a specific
sum of money, which he proposes to pay in a particular way.
The proposition is accepted, and he sends a receipt, in terms
and in legal effect, a complete extinguishment of her interest,
and a full release to him from ali liability for it, which he re-
quests shall be signed by the appellant and her husband, and
returned to him. It is signed and returned, and he remits them
so much money, as he nad agreed. The sum stated as the
amount of the appellant's interest is not probably a fifth of the
real amount. That the appellant knew the falsity of his- state-
ment, is not questioned, and can not be questioned in view of
the facts stated in the bill. The means of ascertaining the pre-


[Humphreys v. Burleson.]

cise value of the interest of the appellant were in the hands of
the appellee, not in her hands, and she had not access to them.
There could be but one motive for the misrepresentation, and
that must have been the diversion of her attention from the
settlement he was proposing to make, the prevention of her
interference in the settlement, and the acquisition of her share
or interest for a sum wholly disproportionate to its value, or
the equivalent of an acquisition, the acquittance of all liability
for it. The representation was relied upon by the appellant,
and it was very natural for her to rely upon it. It proceeded
from her trustee, whose duty it was to give her information
upon which she could rely; and it would add to the wickedness
of the deception, if he were now permitted to reproach her
with fault, negligence, or folly, in trusting and believing him.
He invited the trust, and he must keep it inviolate. The trust
he invited, the misrepresentation to which confidence was given,
absolved the appellant from the duty of examining the accounts
filed for settlement, from litigating their correctness, and from
presenting her rights and interests to the court for adjudication
and determination.

The facts disclose a fraud upon the appellant, which vitiates

Online LibraryAlabama. Supreme CourtReport of cases argued and determined in the Supreme court of Alabama (Volume 72) → online text (page 1 of 86)