recover, claiming that under this deed, when Howard College was moved to East Lake, this property reverted to the original grantors and their heirs. Upon the introduction of all the evidence the court refused to give, at the request of the plaintiffs, the general affirmative charge in their behalf, and gave the general affirmative charge in favor of the defendants at their request. To each of these rulings the plaintiffs separately excepted. There were verdict and judgment for the defendants. The plaintiffs appeal, and assign as error the refusal to give the general affirmative charge requested by the plaintiffs, and the refusal to give the general affirmative charge requested by the defendants.

De Graffenreid & Evins, for appellants. Pettus, Pettus & Johnson and J. H. Stewart, for appellees.

TYSON, J. This is an action of ejectment brought by the plaintiffs to recover a certain lot described in a deed executed by J. T. Barron and others to I. W. Garrott and others on the 16th day of November, 1854. The plaintiffs claim title as heirs at law of the grantors to this deed. The deed is one of bargain and sale, for a consideration of $300, and contains the usual covenants of warranty. It conveys the lot in suit to Garrott and others, "the Trustees of the Howard College, and their successors in office." The language in the deed which appellants contend reduces the quantity of the estate from a fee simple to a base fee is found in the habendum clause, which is in these words: "To have and to hold the aforegranted premises to the said Trustees of the Howard College, and their successors in office, to the use of said college." The contention is that a fee simple is a pure inheritance, clear of any qualification or condition. It is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land. Every restraint upon alienation is inconsistent with the nature of a fee simple, and, if a partial restraint be annexed to a fee, it ceases to be a fee simple, and becomes subject to a condition. From these principles, which are correct abstractly, appellants' counsel make the deduction that the words, "to the use of said college," limit the estate conveyed to the Trustees of the Howard College. The limitation or condition we are asked to place by construction on these words is that in the event the Howard College, a body corporate, ceased to use the lot upon which it had erected its buildings for the purpose of maintaining a college for the education of boys and young men, the property reverted to the grantors. In other words, the title to Garrott and others was a defeasible one, conditioned upon the use of the lot by the Howard College as an institution of learning, and for no other purpose.

Section 1020 of the Code, which was in existence when the deed under consideration

was executed (section 1299, Code 1852), provides that "every estate in lands is to be taken as a fee simple, although the words necessary to create an estate of inheritance are not used, unless it clearly appears that a less estate was intended." So then, in order to give the language such a construction, it must clearly appear that it was the intention of the grantors to convey a qualified fee. There are no usual and proper technical words in this deed such as "provided," "so as," or "on condition" in connection with a clause of forfeiture or re-entry. Forfeitures or conditions in grants are not favored in law, and hence, independent of the statute, they must be clearly expressed. "They are also to be construed with great strictness, because they tend to destroy estates; and the rigorous exaction of them is a species of summum jus, and in many cases hardly reconcilable with conscience." Woodworth v. Payne, 74 N. Y. 196. At best, the intention of the grantors in this deed to make a condition that the lot should be used by the Howard College forever for school purposes only lies in mere inference and argument. Such a condition is not to be raised readily in this way. Co. Litt. 205b, 219b; 4 Kent, Comm. (6th Ed.) 129; Shep. Touch. 133; Merrifield v. Cobleigh, 4 Cush. 178, 184. While we have been unable to find any case decided by this court involving the question here under discussion, there are quite a number in other jurisdictions where the language in the conveyances was substantially the same as that used in this deed. In Rawson v. Inhabitants of School Dist. No. 5, 7 Allen, 125, the grant was of land which had been used as a burying place to a town, by deed to "the town of Uxbridge forever, to their only proper use, benefit, and behoof, for a burying ground forever." The court held that the grant was not conditional, but the deed conveyed a fee-simple title. In Packard v. Ames, 16 Gray, 327, a deed of land was made to a number of persons incorporated as a religious society, habendum to them and their heirs and assigns, "and to each and every person who may hereafter become lawful owners and proprietors of a pew in the meeting house to be built and erected thereon, and which may and shall afterwards be rebuilt thereon by the said proprietors and their successors, to the use and behoof of the said proprietors for the said purpose, and of each and every lawful owner and proprietor of a pew or pews in the meeting house to be built and rebuilt on the said lot of land, forever," without any clause providing for forfeiture or re-entry, is not a grant upon condition that a meeting house shall be erected and maintained upon the land conveyed. In Chapin v. Harris, 8 Allen, 594, a grant of land adjoining a railroad, with the water power of a brook upon the land, running along by the side of the railroad, and the right of making a dam across the brook and abutting upon the embankment of the railroad, "provided said dam shall be so built as

to answer for a street to the railroad, and said street is to be opened three rods wide" across the granted premises to the railroad, and the grantee "is to make the road," is not a grant upon condition. In Episcopal City Mission v. Appleton, 117 Mass. 326, land was conveyed for nominal consideration to a religious society, its successors and assigns, "upon the subject to the condition" that the society was to continue to hold, occupy, and improve the land and chapel standing thereon, for the support of religious worship in conformity with the usage of the Protestant Episcopal Church, "and also upon the further condition" that no building should be erected upon a certain portion of the land conveyed until after an adjoining owner had ceased to keep open a contiguous strip of land, or until after such time as the chapel should cease to be used as a chapel in accordance with the above provision. It was held that the deed did not create a condition, but that the grantees got a fee-simple title. In Taylor v. Binford, 37 Ohio St. 262, C., being the owner of land, conveyed it, for a valuable consideration, to a township board of education, its successors and assigns, "for the use of school purposes only." Held, that the grantees acquired a fee-simple title. In First Methodist Episcopal Church v. Old Columbia Public Ground Co., 103 Pa. St. 608, A. covenanted with B., C., and D. by an instrument under seal that he would, when they required, convey to them a certain piece of land in fee simple in trust for the sole use of a company thereafter to be formed for supplying a certain borough with water, said ground to be for a reservoir of a certain size specified. B., C., and D. covenanted that A. should, upon erecting a hydrant at his own expense, have a supply of water from the reservoir for his use. The water company was formed, and B., C., and D. released all their rights under the above agreement to said company, which thereupon constructed a reservoir of the size specified on the premises. Several years afterwards A. constructed a hydrant, and drew water from the reservoir for his own use for a few years. He then discontinued the use of said hydrant, and subsequently died. Fifty years after the date of the original agreement, and twenty-five years after the discontinuance of the use of the hydrant, the water company abandoned the premises, filled up the reservoir, and conveyed the land to a religious corporation for church purposes. In ejectment against the church by purchasers from the heirs of A., held, that the agreement between A., B., C., and D. did not constitute a base fee, determinable on the cessation of the use of the premises for a reservoir, but that it passed a fee simple. In Harris v. Shaw, 13 Ill. 456, the deed was made to certain persons therein named as county commissioners. The consideration was the location thereon of the county seat. The habendum clause was in these words: "To have and to hold the same, and all and singular,

the premises above mentioned, and every part and parcel thereof, with the appurtenances, unto the said county commissioners for Tazewell, or their successors in office, and to the only proper use and behoof of the said county of Tazewell, forever." The court held that the deed conveyed a fee simple. In Brown v. Caldwell, 23 W. Va. 187, a grant of land for a consideration to a trustee, upon trust that the trustee "shall at all times permit all the white religious societies of Christians, and the members of such societies, to use the land as a common burying ground, and for no other purpose," is not a grant upon condition. In City of Portland v. Terwilliger, 16 Or. 465, 19 Pac. 90, the defendant agreed to convey land to the plaintiff, and plaintiff agreed that one-fourth of the land should be used as a cemetery, and to expend $400 in building a road to the same; that the proIceeds of the sales of burial lots should be used in improving the grounds; and that one burial lot be conveyed to each of the grantors. A deed was executed pursuant to the agreement, upon the "expressed terms, conditions, and reservations," and in consideration that plaintiff perform such stipulations; but no right of entry was reserved, nor was it provided that said estate should cease on nonperformance. The grantee was put in possession. Held, that such deed conveyed an absolute estate. In Sumner v. Darnell (Ind.) 27 N. E. 162, 13 L. R. A. 173, a deed to certain persons, "commissioners of W. county, and their successors in office, for the use of said county," accepted by an entry upon the county records as a deed "to and for the use of" said county, gives the legal title to the county, and not to commissioners; also held that a conveyance "for the use of" a county, in consideration of the seat of justice having been permanently established at a certain place, is not on condition subsequent that the county seat remain there, and no reversion is worked by removal of the county seat. There are a great many other cases which sustain the principles announced in the cases we have cited, but we refrain from reviewing or citing them, for the reason that they are noted in those we have referred to.

A short review of the cases relied upon by the appellants to support their contention will serve to show that they are either not in point or against the great weight of authority. In Scheetz v. Fitzwater, 5 Pa. St. 126, E. conveyed to L. a milldam or pond of water, with the site or soil of said pond, for the use and service of a mill (on the land of L.), and for no other purpose. In Banking Co. v. Brown, 27 N. J. Law, 13, the deed was made to the Morris Canal & Banking Company, conveying all interest and estate of the grantor in the land and appurtenances to their only proper use, benefit, and behoof, "as long as used for a canal." In Kirk v. King, 3 Pa. St. 436, the conveyance was "to the employers of a certain school, to hold the same for an English school house, and no other

purpose." To the same effect was the conveyance in Society v. Boland (Mass.) 29 N. E. 524, 15 L. R. A. 231. The case of Board of Education of the Incorporated Village of Van Wert v. Inhabitants of Van Wert, 18 Ohio St. 221, was a dedication of certain lots under a statute. In Agnew v. Jones (Miss.) 23 South. 25, a license was granted to build and use a school house, the land to revert to the grantor when the school was abandoned. There is a marked distinction between these cases and the one at bar. In each there were words in the deeds expressly limiting the use of the property to a certain purpose, and no oth

er.

The remaining two cases cited by appellants are Robinson v. Railroad Co. (Vt.) 10 Atl. 522, and Flaten v. City of Moorhead (Minn.) 53 N. W. 807, 19 L. R. A. 195. The former is a decision of the supreme court of Vermont and the latter of Minnesota. In the first it was held that where the granting part of a deed would convey a fee, but to the description of the land granted was added the clause, "for the use of a plank road," this clause was a limitation upon the grant, and that only an easement was conveyed. In the second, independently of, but immediately following, the description of the conveyed premises in a deed containing, without any exceptions, the usual covenants of warranty,

in which deed the grantee was a municipal corporation, its successors and assigns, and the expressed consideration a nominal sum, was this clause: "Said tract of land hereby conveyed to be forever held and used as a public park." The purpose of the conveyance was not stated elsewhere. Held, that upon the face of the instrument the municipality did not acquire an absolute title in fee to the premises. So far as we have been able to ascertain, these two cases stand alone in American jurisprudence. They are certainly opposed to the great weight of authority, and upon principle cannot be sustained. We are without authority to interpolate into the deed here under consideration, under the guise of construction, words signifying a condition and reversion to the grantors in the event the condition is broken. This was a matter solely for the parties to the conveyance to have done, and this we must do in order to sustain the contention of the appellants. The plaintiffs failing to prove any title in them to the lot in controversy, they are not entitled to reThe judgment of the circuit court is

cover. affirmed.

(126 Ala. 146)

PRINZ v. WEBER. (Supreme Court of Alabama. April 12, 1900.) JUSTICES OF THE PEACE-LOSS OF RECORDS SUBSTITUTION-NOTICE-APPEAL AND ERROR.

1. In justice court the record and other papers in attachment proceedings filed in the circuit court on certification thereto were lost. On application for a substitution of papers, notice was ordered given to the defendant,

who was a nonresident, which notice was published in a newspaper in the county for three consecutive weeks, and trial adjourned until the termination of such period. In the minute entry of the judgment of substitution notice to the satisfaction of the court was recited, and judgment entered. Held, that the notice was sufficient.

2. The minutes of the court, as certified to the supreme court in the transcript, are conclusive, and cannot be questioned on ex parte affidavits.

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by G. A. Prinz, executor, against Geraldine Weber. Upon plaintiff taking a nonsuit and judgment in favor of defendant for costs, plaintiff appeals. Reversed.

This suit was originated in a justice of the peace court by the suing out by the appellant of an attachment against the appellee, who was a nonresident. Upon this writ an attachment was levied upon certain lands, in the absence of personal property belonging to the defendants, upon which the levy could be made. In the justice of the peace court, a personal judgment was rendered against the nonresident defendant, and it was provided in said judgment that the lands levied upon were liable for the judgment rendered and should be sold according to the law of judgment and proceedings in the justice of the state. Thereupon the transcript of the

the peace court were certified to the circuit court. In the circuit court the defendant interposed a claim of homestead exemptions to the property levied upon. The plaintiff in the judgment filed a contest of such claim, and issue was made up for the purpose of trying the right of exemptions. The record and proceedings in the justice of the peace court, as certified to the circuit court, and the other papers filed in the circuit court were lost. By a proceeding before the justice of the peace, the record and proceedings had in the trial before him were substituted. During the trial of the contest of the claim of exemptions, the plaintiff offered in evidence the record, proceedings and papers that had been substituted before the justice of the peace who rendered the original judgment. The defendant objected to the introduction of these records and papers in evidence.

Upon the plaintiff taking a nonsuit, judgment was rendered in favor of the defendant for the costs. From this judgment the plaintiff appeals, and assigns as error the rulings of the court upon the evidence. In this court motion is made by the appellee to expunge certain portions of the judgment entry in this case. To sustain this motion ex parte affidavits were filed.

Geo. H. Parker, for appellant. J. B. Brown, for appellee.

HARALSON, J. When the claim of exemptions of the defendant came on to be tried in the circuit court, the plaintiff offered

the proceedings and papers that had been substituted before the justice, Fuller. The defendant objected to their introduction, on the grounds, first and second in substance the same, because notice of the substitution | of papers was not sufficient to authorize judgment of substitution in justice's court; third, because they were not original papers, but were substituted papers and were irrelevant and immaterial; fourth, because notice from justice of the peace was issued to Max Merx, publisher of Alabama Tribune. The court sustained all these grounds of objection except the third, to which ruling the plaintiff excepted and took a nonsuit with a bill of exceptions. It will be observed, that the objection to the evidence raised and passed on by the court was not that it was illegal and irrelevant, but on grounds simply questioning the regularity of the proceedings of substitution before the justice. The court sustained these grounds and based its decision on them. We must confine our decision to the grounds of objection raised.

It appears from the bill of exceptions, that on June 9, 1892, the complainant made his motion in said Justice Fuller's court to substitute said papers, and the defendant being a nonresident, it was ordered that notice should be given to her of the pendency of said application by publication in the Alabama Tribune, a newspaper published in Cullman, and the trial was adjourned until after such notice should be given. On the 13th of February thereafter, the cause having been continued until then, the Justice rendered his order substituting said papers. In the minute entry of the judgment, it is recited: "It being shown to the satisfaction of the court that notice of the time and place of this hearing to substitute the original papers in said cause has been duly given by publication of a notice thereof for three successive weeks in the Alabama Tribune, a weekly newspaper published in said county, in accordance with the former order of this court, and that said notice was so given before February 8, 1892," etc. Judgment of substitution was rendered. A copy of the notice and an affidavit of its publication according to the order therefor, made by the publisher of the Alabama Tribune, are set out in the bill of exceptions. This notice and its publication appear to be full and sufficient, and was not subject to the objection raised against it. Meyer v. Keith, 99 Ala. 519, 13 South. 500; Diston v. Hood, 83 Ala. 331, 3 South. 746; Code, § 2649.

The fourth, and only other ground of objection, was, as we have seen, that the notice from the justice of the peace was issued to Max Merx, publisher of the Alabama Tribune. This objection as appears is without foundation in fact, and was improperly sus tained. The objections were improperly sus tained.

2. The motion here made, on ex parte affidavits, to expunge the judgment entry in

this case, because as alleged the clerk of the court, after adjournment of the term, struck out the original and approved minutes, and inserted in lieu thereof another and different judgment, cannot be granted. The minutes of the court as certified to us in the transcript import absolute verity, and their correctness cannot be questioned in the manner attempted in this case. 12 Am. & Eng. Enc. Law, 147v, 149; 1 Black, Judgm. §§ 246, 273, 276, 368; U. S. v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93. If it is desired to correct the judgment, so as to restore the one originally entered, for the reasons set out in the motion and affidavits to here expunge from the transcript the judgment entry appearing as certified, it should be done by another proceeding instituted for the purpose.

The judgment will be reversed, an order here entered setting aside the nonsuit, and remanding the cause.

Reversed, nonsuit set aside, and remanded.

(126 Ala. 120)

COSKREY et al. v. SMITH. (Supreme Court of Alabama. April 18, 1900.)

VENDOR'S LIEN-FORECLOSURE-PARTIES

CONVEYANCE-NOTICE-BUR

DEN OF PROOF.

1. A purchaser at a foreclosure sale under a vendor's lien did not acquire title as against the judgment debtor's grantee for valuable consideration, before foreclosure, where such grantee was not made a party to the foreclosure action.

2. Where a grantee of land brought ejectment against purchasers at a foreclosure sale under a vendor's lien, to which foreclosure suit such grantee was not made a party, the onus was on defendants to show that plaintiff purchased and paid value with notice of such vendor's lien; and, no evidence being introduced in that regard, plaintiff was entitled to judgment.

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Ejectment by R. W. Smith against D. B. Coskrey and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

On the trial of the case the plaintiff introduced evidence tending to show the following facts: On January 31, 1891, M. Connor and wife sold to R. C. Freeman the lands involved in this suit, and executed a deed thereto, which was regular in every way. R. C. Freeman went into possession of the land under this deed, and on September 28, 1891, he and his wife sold said land to W. T. Freeman, and executed a deed, properly acknowledged and filed for record. Under this deed W. T. Freeman went into possession of said lands, and subsequently borrowed from R. W. Smith, the plaintiff, the sum of $570.58, for which he executed his note and mortgage to said R. W. Smith. Subsequently, on February 18, 1893, the said W. T. Freeman and wife executed their note and mortgage to R. W. Smith on said lands to se

cure the same indebtedness. On January 19, 1897, W. T. Freeman and wife executed a deed to said lands to said Smith in satisfaction of the indebtedness secured by said mortgages, and it is under this deed the plaintiff claims title to the property sued for. The defendants introduced in evidence a note which was executed on December 14, 1893, by W. T. Freeman and R. C. Freeman, for $240.80, which was made payable on October 15, 1894. The defendants further proved

that at the time of the execution of the deed introduced in evidence by the plaintiff, from R. C. Freeman to W. T. Freeman, the said W. T. Freeman executed, as a part of the consideration of the purchase of said lands conveyed in said deed, the note for $240.80 which was introduced in evidence. It was further shown that the note had never been paid, and that R. C. Freeman transferred said note to Wall, Stokes & Co., a partnership composed of the defendants A. D. Wall, C. A. Stokes, and H. M. Sessions; that said note belonged to Wall, Stokes & Co. on May 17, 1897, at which time they filed their bill of complaint in chancery for the purpose of enforcing a vendor's lien upon the lands here sued for, in order to secure the payment of said note. This bill was filed against W. T. Freeman alone. On June 7, 1898, the chancery court rendered a decree adjudging that the complainants in said bill had a vendor's lien upon said land. On February 6, 1899, a decree was rendered in the chancery court ordering the sale of said land for the satisfaction of complainants' demand. Subse quently, on March 20, 1899, the lands were sold by the register of the court, and purchased by A. D. Wall, C. A. Stokes, and H. M. Sessions, the defendants in the present suit; the register making a deed of said lands to the purchasers. It was further shown that the defendant D. B. Coskrey was the tenant of the other defendants, and in possession of said land. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his behalf. The defendants duly excepted to the giving of this charge, and also excepted to the court's refusal to give the general affirmative charge requested by them. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the giving of the general affirmative charge requested by the plaintiff, and the refusal to give the general affirmative charge requested by the defendants.

Foster, Samford & Carroll and Sollie & Kirkland, for appellants. M. N. Carlisle, for appellee.

MCCLELLAN, C. J. The doctrine whereby a title acquired upon foreclosure of a lien relates back to the inception of the lien, so as to cut off intervening alienations, has no application to grantees of the title before foreclosure, upon valuable consideration, and

without notice. There was no occasion or opportunity for Smith, the plaintiff in this statutory real action, to formally propound his status as a purchaser of the legal title for value, and without notice of the lien, by replication or other pleading; but he brought himself and his title prima facie within the protection of that principle when he showed by uncontroverted evidence that he was a purchaser for value of the legal title, and that it was conveyed to him by the mortgages executed by W. T. Freeman, and also by the latter's deed in satisfaction of the last mortgage. Upon the case thus made, the onus was on the defendants to show that he so purchased and paid value with notice of the lien in favor of W. T. Freeman's vendor. This onus not having been discharged, -no evidence tending to show such notice having been offered,-Smith, the plaintiff, was entitled to the affirmative charge given for him by the court. Affirmed.

MAY v. O'NEAL.

(125 Ala. 620)

(Supreme Court of Alabama. April 18, 1900.) TORTS-DAMAGES-RIGHT OF ACTION-CONDITION PRECEDENT.

1. Where plaintiff rented a mare to another, to use for one year, who, before the termination of the contract, disposed of her to defendant, who in turn disposed of her to another, attempting to convey an absolute title, with knowledge that the mare belonged to plaintiff, defendant is liable to plaintiff for the damages sustained.

2. No demand by the plaintiff on defendant for the return of the mare after the termination of the contract was necessary before institution of suit.

Appeal from circuit court, Henry county; J. C. Richardson, Judge.

Action by Warren May, Jr., against W. C. O'Neal. From the sustaining of demurrers to all the counts in the petition, plaintiff appeals. Reversed.

This was an action brought by the appellant against the appellee. The complaint, as originally filed, contained two counts. The second count was stricken on motion of the plaintiff. After demurrers to the first count of the original complaint were sustained, the complaint was amended so as to contain three counts, as follows: "(1) Plaintiff claims of the defendant the sum of seventy-five dollars damages, for that on or about the 1st day of January, 1898, plaintiff was possessed of, and the owner of, one dark-bay mare, which he rented, hired, or let to one Warren May, Sr., for and during the year 1898; that afterwards, to wit, on or about the 1st day of May, 1898, Warren May, Sr., without authority of plaintiff, sold, swapped, or traded said horse to defendant, who afterwards, in defiance and disregard of plaintiff's right, title, and interest in and to said horse, prior to the termination of said lease interest, wrongfully sold or otherwise disposed of and