[Moore v. Randolph's Adm'r.] other devisees. It is no answer to this, that the devisees in interest have since ratified that sale, and thus legalized it. At the time when it is alleged Clark committed the devastavit, the sale had not been ratified. So far from this being the case, the original bill filed in this cause assailed the decree of sale as void, and prayed to have it so declared. It was only by an amendment to the bill that the complainants ratified the sale, and prayed to have the lien for the purchase-money enforced. It is shown that, during his entire administration, Clark, the administrator, acted under and in accordance with experienced and able counsel, and there is nothing in the record to show bad faith on his part. We think the chancellor did not err in his ruling on this question. Neither do we think the administrator betrayed a want of proper prudence or diligence in bringing the suits at law against R. C. Randolph and Spedden. Many reasons may be given for this. It may have been regarded as the simplest and most expeditious means of obtaining a judicial determination of the questioned validity of the land sale. It was probably believed that at least something could be realized on the judgment, when recovered. It may have been desirable to have the claim put in judgment for many conceivable reasons, which will readily suggest themselves to the legal mind. There is not enough in this record to enable us to affirm that the administrator is not entitled to his reasonable attorney's fees for this service. It is contended for appellant that, because Richard Randolph was both payor and payee of the notes given in the Spedden purchase, no judgment at law could have been rendered on these notes, and that it was either gross ignorance, or gross negligence, to bring the suits. He was payee in his representative capacity, and payor in his individual capacity. When he ceased to be the personal representative of Jane Randolph's estate, he ceased to have any right to the note or its proceeds. The right to the note and its collection vested in Clark, when he was appointed administrator de bonis non. Harbin v. Levi, 6 Ala. 399. We are not prepared to say the suit by Clark, administrator de bonis non, against Spedden, on these notes, should not have been maintained.-Lacy v. Le Bruce, 6 Ala. 904; Willis v. Neal, 39 Ala. 464. The fact that plaintiff acquiesced in the ruling against him, and did not appeal to this court, by itself, proves nothing. He may have become convinced that a judgment at law was not necessary, or would be unproductive; or, he may have concluded the judgment he recovered against Spedden on the R. C. Randolph notes, would exhaust all the property he had. But we need not decide whether or not this suit should, or could have been maintained. [Moore v. Randolph's Adm'r.] It was not so clearly settled that the defense was good, as to convict counsel of gross ignorance, or gross negligence, in bringing the suit.-Goodman v. Walker, 29 Ala. 444. The administrator was entitled to reasonable compensation for bringing the suit. It is objected that Clark, the administrator, should have had no allowance, or a smaller allowance, for defending the present suit. We think, under the circumstances shown in the record, about one-half of an ordinary fee for defending such suit should have been allowed the administrator in his settlement. Holman v. Sims, 39 Ala. 709; Smith v. Kennard, 38 Ala. 695. The allowance in this case was about one-half of what the witnesses testified was reasonable compensation for the service, The register seems to have taken a view of the case which led to the same result, and we are not inclined to disturb his finding. On a single question we differ with the chancellor. The present suit was against the administrator, and the land was ordered to be sold, and was sold, not in obedience to any proceeding or prayer instituted or preferred by him. He had nothing to do with the sale or conveyance, and, under the facts of this case, nothing to do with the distribution of the proceeds. Under the circumstances disclosed in this record, the administrator was entitled to no commissions on that fund. This makes a difference in the allowance to the administrator on final account, rendered and stated May 18th, 1874, and confirmed by the chancellor June 24th, 1874, of $379.88. The excess of expenditures over receipts, as stated and allowed on that settlement, should have been $122.85, instead of $502.73100, as reported and confirmed. On this sum the administrator is entitled to interest, from the date of the report. In all other respects, the decree of the chancellor is affirmed, and will be executed in the court below for the modified sum of $122.85, with interest, as the decree for the larger sum was ordered to be executed. It has been objected before us, that the complainants did not except in the court below to the allowance of the item of commissions, which we have declared should not have been allowed. This objection applies only to the corrected report, which was made in precise accordance with the directions of the chancellor. This item of allowance was embraced in the original report, was then excepted to by complainants, and the exception overruled by the chancellor, who thereupon re-referred the account, with instructions to the register to correct and report it according to rules laid down by him. It does not appear that these instructions were, in any respect, disobeyed by the register. A further exception to the report, on grounds once [Willingham v. Long.] considered and overruled by the chancellor, was unnecessary, and would possibly have been regarded as disrespectful. Harbin v. Bell, 54 Ala. 389. This was The form in which the exceptions were taken and noted in this case, is somewhat open to criticism. They appear to have been taken before the register, and only noted by him in his report. They are, however, very distinctly and specifically taken and noted. A correct practice requires they should have been prepared by counsel, signed by him, and filed in the Chancery Court, as a separate paper in the cause. not done by either party, so far as the record discloses the action of the court on this account. The chancellor passed on the exceptions, sustained some, and overruled others; and no objection was taken to their informal presentation, either by the court or counsel. Had the objection been taken then, the informality could, and doubtless would have been healed. The point not being raised in the court below, we will not consider it here. It should be noted, this case is governed by Rules 88 and 9 of Chancery Practice, as found in the Revised Code, and not by the later Rule 93, in the Code of 1876. The bill in this case, as amended, prayed the removal of the administration into the Chancery Court, and the complainants -appellants here-can not be heard to complain that their prayer was granted. It was a proper case for chancery jurisdiction, and no steps having been taken in the Probate Court, looking to a settlement, the legatees under the will could have the settlement removed into the Chancery Court, without assigning any special reason therefor. Reversed on the single point stated above, and here rendered, correcting the register's report, so as to show the excess of disbursements by the administrator, over receipts by him, was $122.85, and confirming the report as thus corrected. The Chancery Court will proceed to enforce the decree as thus amended, to close the settlement of Clark's administration, and make all necessary orders to that end. Willingham v. Long. Action by Material-Men to enforce Statutory Lien on House. 1. Statutory lien of material-man.-A person who furnishes lumber and materials to be used in the construction of a house, and which are so used, has a statutory lien on the house, and on the lot on which it is [Willingham v. Long.] situated (Code, §§ 3440-61), whether his contract was made directly with the owner, or with the mechanic who undertook to do the work. APPEAL from the Circuit Court of Russell. Tried before the Hon. JAMES E. COBB. This action was brought by W. A. Willingham, against James W. Long, to recover the sum of $205.83, the price of lumber and materials furnished by plaintiff to defendant, to be used in the construction of a house, and also to enforce a statutory lien on the house (and the lot on which it was situated, which was particularly described in the complaint); and was commenced on the 18th September, 1879. The complaint alleged, and the proof showed, that the lumber and materials were furnished by the plaintiff, under a verbal contract made personally with the defendant, between the 7th December, 1878, and the 16th February, 1879, to be used in the construction of a house by the defendant, and were so used; that on the 11th June, 1879, "within four months after the said indebtedness accrued," plaintiff filed in the office of the probate judge a just and true account of his said demand, with a description of the house and lot, verified by affidavit, as required by the statute. The plaintiff himself testified, as a witness in his own behalf, to the terms of his contract with the defendant, the furnishing of the lumber and materials as specified in the account, and the price or value; and he proved by one George W. Cooper, who did the work on the house, that the lumber and materials were used in its construction. As to these matters, and as to the due registration of the claim, there was no controversy. "It was admitted, that the defendant's said house and lot were correctly described in the complaint, and in the claim filed in the Probate Court; that plaintiff's account was correct, and that the articles therein mentioned were used in the construction of the defendant's said house. This being all the evidence, the court charged the jury, that if they believed, from the evidence, that the materials so furnished by plaintiff to defendant were furnished under and by virtue of a contract made between them, then plaintiff had no lien, and no right to a lien, upon the defendant's said house, or house and lot." This charge, to which the plaintiff excepted, is now assigned as error. HOOPERS & WADDELL, for appellant. STONE, J.-On the authority of Welch v. Porter (63 Ala. 225), and Geiger v. Hussey (Ib. 38), the judgment in this cause must be reversed. See, also, Phil. Mech. Lien, §§ 12, 112. Reversed and remanded. [Steele v. Sullivan.] Steele v. Sullivan. Bill in Equity for Injunction against Obstruction of Alley in Incorporated City. 1. Dedication of highway to public use; how made, or proved.—A dedication of land to public use as a highway is not required to be in writing, but may be made by any act, or declaration of the owner, manifesting an intention to devote the property to such public use, and it is not complete until accepted by the public; but, while the act of dedication, especially if single, must be clear and unequivocal, acceptance may be shown by long public use, or by acts of corporate or other public officers, recognizing and adopting the highway as such. 2. Dedication of private way, or street or alley in city or town.-A private right of way can not be created by dedication, but a street or alley in an incorporated city or town may be so established, when accepted by the mayor and aldermen, or other corporate authorities; and such acceptance may be manifested, among other methods, by long and uninterrupted use by the public without objection, by the expenditure of corporate money or labor in repairs, and by the recognition of the street or alley in official maps prepared under the authority or direction of the corporate authorities. 3. Presumption of dedication from mere user.-The dedication of a highway, or of a street or alley in an incorporated city or town, will not be presumed from mere user, unaccompanied by some clear and unequivocal act showing the owner's intention, for any period short of twenty years; and a user for twenty years even will not raise such prescriptiod, when it appears that the right was always contested. 4. Recitals in deeds, as affecting dedication.-When streets or alleys are laid out by the owner of land, and lots sold with reference to them, and purchases made on the faith of the act, a dedication may be inferred, though the intention of the owner is always open to explanation; but the mere fact that, in conveying an adjoining lot or tract of land, he describes it as being bounded by a road on one side, does not prove a dedication of the road to the public; and recitals in recorded deeds conveying lands or lots adjacent to a street or alley, which repel the idea of a dedication, tend strongly to rebut the presumption arising from mere user. 5. Presumption of right of way, or private easement, from user.-When a private person claims a right of way, or other easement, on the principle of prescription, he must show that the user and enjoyment was adverse to the owner of the estate, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge, actual or presumed, of such owner; since a user which is merely permissive, tolerated by the owner, or held under an implied license from him, is revocable at pleasure, and will never ripen into a title by prescription. APPEAL from the Chancery Court of Madison. The bill in this case was filed on the 3d February, 1873, by |