leged trespass. For the errors pointed out, the judgment of the circuit court is reversed, and the cause remanded.

(126 Ala. 107)

MARX et al. v. CLISBY et al. (Supreme Court of Alabama. May 10, 1900.) WILLS TRUSTS AUTHORITY OF TRUSTEEMORTGAGE-RECORD - NOTICE - RIGHTS OF BENEFICIARIES - ESTOPPEL - ACCOUNT FOR BENEFITS.

1. A trustee has no power, under a will authorizing him to mortgage real estate owned by testatrix at the time of her death, to mortgage real estate conveyed to him in trust, and paid for with trust rents and profits.

2. The probate and record of a will limiting the authority of a trustee appointed thereby to mortgage real estate to that owned by testatrix at the time of her death, and the record of a deed conveying property to such trustee, were notice of his lack of authority to mortgage the same.

3. Where the only consideration for an unauthorized mortgage on trust property, executed by a testamentary trustee, under which the property was sold, was the extension of another mortgage on other property, the beneficiaries are not precluded from recovering the same because of failure to tender or account for the proceeds of the mortgage or benefits received therefrom,

4. No unauthorized act of a trustee under a will in executing a mortgage on property purchased with trust funds can estop the beneficiaries from maintaining an action to recover the same.

Appeal from city court of Birmingham, Jefferson county; Charles A. Senn, Judge.

Bill by Warner C. Clisby and others against Otto Marx and others to recover lands and for an accounting. From an order overruling their demurrer to the bill, defendants appeal. Affirmed.

The bill in this case was filed by the appellees against the appellants. The case made by the bill was as follows: Fannie T. Clisby died testate in January, 1889, leaving her husband, A. A. Clisby, and the complainants, her only children and heirs at law, surviving her. At the time of her death she was possessed of a large estate of real and personal property. Her will was duly probated in March, 1889. In her will, after some special legacies of a few articles of personal property, she devised all of her estate to her husband, "Alfred A. Clisby, to have and to hold the same to himself, his heirs and assigns forever, upon the trust following." Then follow the several trusts imposed. The first provision as to the trust under which A. A. Clisby, the husband of the testatrix, was to hold the property, was in the following language: "To keep the same together for and during his natural life, and during that time to manage, control and use the same for the benefit of my children, Warner Clisby, Louise Clisby, Angus Clisby, Kathleen Clisby, Leonard Clisby, and all other children that may hereafter be born unto me, and it is my further will and desire that in the managing and control of said property and the expenditures of the

rents and profits thereof for the purposes aforesaid my said husband and trustee shall use his own discretion and exercise his own judgment, and that he shall not be held to account by my said children for his actings and doings or for the manner of expending and using the rents and profits aforesaid, during his said life; but that he shall be free from liability to so account during his said life."

The will also contains the following provision in reference to the powers of A. A. Clisby, as trustee: "My said husband and trustee shall also have the power, and he is hereby authorized, to mortgage any or all of the real estate that I may die owning (legally or equitably) in the state of Alabama, for the purpose of raising such amount ог amounts of money as he may find necessary to pay my debts, including the indebtedness of others assumed by me as part of the consideration of sales of real estate made to me, and shall apply the proceeds arising from the mortgage or mortgages as aforesaid to the payment of said indebtedness by me, and, if he cannot raise sufficient money for said purpose by mortgaging said property in whole or in part, then he is hereby authorized and empowered to sell at public or private sale such portions of my said estate as is absolutely necessary for that purpose, and thus paying said indebtedness; said sale to be at such price and on such terms as my said trustee shall think for the best interest of my estate."

* *

A. A. Clisby was also mentioned as executor of the will of Fannie T. Clisby, and after the probate of the will he entered upon the discharge of his duties as executor of the said will and as trustee under it. Out of the rents and profits received from said estate, A. A. Clisby, as trustee, purchased a lot in the city of Birmingham, which is the subject-matter of the present suit, and by deed bearing date May 12, 1891, this lot was conveyed by the grantor, D. R. Maddox, to "Alfred A. Clisby as trustee for Warner Clisby, Louise Clisby, Angus Clisby, Kathleen Clisby and John H. Clisby, under and by the will of Fannie T. Clisby, deceased, to have and to hold to the said A. A. Clisby, trustee, as aforesaid, his heirs and assigns, forever." Prior to the purchase of said lot from D. Maddox, A. A. Clisby, in May, 1889, being indebted individually and as executor aforesaid to one Samuel Hirsch in the sum of $12,500, executed a mortgage to said Hirsch to secure said debt on the lot which belonged to Fannie T. Clisby, at the time of her death, and which adjoined said lot purchased from Maddox. In this mortgage it was stated that A. A. Clisby was indebted individually and as executor of said will to said Hirsch, and that the mortgage was made to secure said indebtedness. At the maturity of this mortgage debt, A. A. Clisby, in order to secure an extension thereof for two years, and as a condition for said extension, executed a

new mortgage, in which he conveyed not only the lot included in the other mortgage, but also the lot in controversy, which was bought by him from Maddox out of the rents and profits of the estate of Fannie T. Clisby. The extension of the time in the payment of the debt was the only consideration for including in the mortgage the lot from said Maddox. This last mortgage to Hirsch was foreclosed under the power of sale contained therein and the lot bought from Maddox passed by mesne conveyances into Cornelia A. Sellew. In 1898, the said Cornelia A. Sellew executed a mortgage to S. P. Harris, by which it was the intention of the mortgagees to convey the lot in controversy, but said lot was incorrectly described. In March, 1899, the mortgage to Harris was foreclosed under the power of sale contained therein, and the defendant, Otto Marx, became the purchaser, to whom S. P. Harris, the mortgagee, executed a deed describing the lands in the same way as they were described in the mortgage.

The defendant Cornelia A. Sellew went into possession of the lands at the time of the conveyance to her and remained in possession thereof, receiving the rents, until the date of the execution of the conveyance by Harris to Otto Marx, who then went into possession thereof and was in possession of the same at the time of the filing of the bill. It was then averred in the bill that A. A. Clisby had no power as trustee, as executor, or otherwise, to mortgage the lot in controversy, which was purchased from Maddox, and that, therefore, those claiming said lot under A. A. Clisby took the title thereto with notice that it was burdened with trusts for the benefit of the complainants, set out in ne will of Fannie T. Clisby, deceased.

Otto Marx, Cornelia A. Sellew and A. A. Clisby, as executor of and trustee under the will of Fannie T. Clisby, are made parties defendant; and the prayer of the bill was that the conveyance of the lot in controversy "be held and decreed to have been made subject to the equitable right of the complainants as beneficiaries under said deed executed by said D. Maddox and under said will; and that the said Cornelia A. Sellew and said Otto Marx be required to account to complainants for the rents of said lands received by each of them respectively; and that all title in said lands be devested out of said Cornelia A. Sellew and Otto Marx and vested in said A. A. Clisby, to be by him held for the use and benefit of the complainants, on the trust set out in said will." There was also a prayer for general relief. The will of Fannie T. Clisby and the several conveyances referred to were made exhibits to the bill.

The defendants demurred to the bill upon the following grounds: "(1) It appears from said bill that the lands which the complainants seek to recover were purchased by said Alfred A. Clisby with the rents and

profits of said trust estate, and that, by the terms of said will, he cannot be held to account to the complainants for his actings and doings or for the manner of expending or using said rents and profits during his lifetime. (2) It appears from said bill that the said A. A. Clisby is not bound and cannot be held to account for the rents and profits of said trust estate which were invested in said lands during his lifetime. (3) The bill shows that the complainants had no claim upon the funds which were invested by the said A. A. Clisby in said lands. (4) Said bill shows that the debt which the mortgage to Samuel Hirsch was executed to secure was the debt of the said Fannie T. Clisby, for which her estate was bound, and which the said A. A. Clisby had the power under said will to secure by a mortgage on said lands. (5) The bill shows on its face that the proceeds of the mortgage to Hirsch turned to the benefit of the complainants, and makes no offer to return or account for the same or any part thereof, which in equity and good conscience complainants are bound to do. (6) The bill shows that the complainants, having received the benefit of the mortgage to Hirsch, seek to repudiate the same and claim the lands so mortgaged without offering to account for the benefits so received or any part thereof. (7) Said bill fails to allege that the said A. A. Clisby is insolvent."

On the submission of the cause upon the demurrer, the chancellor rendered a decree overruling it. From this decree the defendants appeal, and assign the rendition thereof

as error.

White & Howze, for appellants. Benners & Benners, for appellees.

HARALSON, J. The first and second grounds of demurrer, the same in substance, are that the land complainants seek to recover was purchased with the rents and profits of the trust estate, and that by the terms of the will, said A. A. Clisby cannot be held to account to the complainants for his acts and doings, or for the manner of executing or using said rents and profits during his life. A sufficient answer to these grounds may be, that the purpose of the bill is not to make the trustee account for the said rents and profits. The trustee had the right, under the will, to invest rents and profits in this land. The bill admitting this, seeks to have the land thus purchased, held as trust property for complainants' benefit under the deed. This property when purchased, became complainants', purchased with their money, and was to be held by the trustee for their benefit. It was not subject to mortgage by the trustee under the will to pay debts of the testator, for it did not belong to her at her death, and it was only the lands owned by her at that time, that she gave the trustee power to mortgage. The probate and record of the will and the record of the deed of Maddox

to the trustee, Clisby, gave notice to all who dealt with the property afterwards, of the power of the trustee under the will, and the extent of his power.

The third ground of demurrer is in denial of the plain averments of the bill; and the fourth, also, goes in denial of its averments. The bill seeks no relief as to the land embraced in the original mortgage by the trustee to Hirsch to secure the $12,500; but even as to that mortgage, it is averred, that the said Clisby owed that sum to Hirsch, both as an individual and as executor and trustee. How much of it he owed in his individual capacity, and how much as executor and trustee, is not stated; but, it cannot be pretended he had any power to mortgage the trust lands to pay his individual debt. As to what part of the debt he is said to have owed as trustee, it may be, he had the power under the will to mortgage the land. He had such power, if the debt was one which testatrix was liable for at her death, and it was necessary to raise the money by mortgage to pay it. As to the new mortgage, in extension of the older one and the debt it secured, it is still clearer, if possible, that the trustee had no power to include in it the Maddox land to pay a debt of his own; and, he was without authority to include it in the latter mortgage, for the reason already stated,-that it was not land which belonged to testatrix at her death, and he had no power to mortgage any other. The will nowhere gave him power to mortgage land which he had purchased with rents and profits. What remedies, if any, creditors would have to pursue this land, as having been bought by the trustee with rents and profits of the estate, in case it were necessary to resort to it to pay their debts, is a question not here presented, and as to which we express no opinion.

The fifth and sixth grounds are without merit. They question the equity of the bill, for that complainants have not offered to return or account for the proceeds of the purchase money for said lot, which inured to their benefit, and have not offered to account for the benefits received by them. How could they be required to make such an offer? It was their money that paid for property, not liable under the will to be mortgaged; and as for that part of the other property covered by said mortgage, which might have been properly mortgaged to secure a debt of the testatrix, the only benefit complainants could have derived as to it, under said mortgage, was its extension for two years, and even that extension of the mortgage might have been a disadvantage to them. We fail to see how the bill is liable to any of the objections interposed by demurrer. The complainants were not estopped by any unauthorized act of the trustee in mortgaging this trust land, nor have they received anything they are required to return, as a condition to the maintenance of their bill. Gillespie v. Nabors, 59 Ala. 441;

(Supreme Court of Alabama. Feb. 9, 1899.) CRIMINAL LAW-INSTRUCTIONS-REASONABLE

DOUBT-APPEAL-FENCES DESTRUCTION CRIMINAL RESPONSIBILITY — ARBITRATION AND AWARD.

1. Code, § 523, providing that parties to a controversy may by writing refer the determination thereof to arbitrators to be chosen by themselves, does not affect the common-law right of parties to a dispute to submit their differences to arbitration; hence an award made pursuant to a parol submission of a dispute as to the boundary of land is binding on the parties.

2. Code, § 5624, provides that any person who shall unlawfully throw down any fence of another, and fail to immediately repair the same, may, on conviction, be fined. Defendant and prosecuting witness, differing as to what constituted the true boundary between their lands, submitted the question to certain arbitrators selected by them. The arbitrators fixed a line, and also found that each party should build a fence six feet from such line, so as to leave a road between them twelve feet wide. Both parties signed the award, and subsequently one of them erected a fence on his side of the line, but less than six feet distant therefrom. The road was never used as such. Held, in a prosecution against defendant for throwing down such fence, that neither the award nor the agreement created or gave defendant any easement in the land of the prosecutor lying be yond the line, and, though the agreement might have been enforced by an appropriate remedy, the award and the agreement constituted no justification for defendant's act in throwing down the fence.

3. Under Code, § 5624, providing that any person who unlawfully throws down any fence or inclosure of another, and fails to immediately repair or rebuild the same, may be fined, a person who unlawfully throws down the fence of another is liable, though it be connected with no other fence, so as to inclose such other's lands.

4. An assignment of error in a criminal case that the court erred in refusing to give certain instructions cannot be considered on appeal, where the bill of exceptions does not show whether they were given or refused.

On Rehearing.

It is error in a criminal prosecution to refuse to give an instruction "that if there is a probability of defendant's innocence they will find for defendant," since such probability is equivalent to a reasonable doubt.

Appeal from Shelby county court; D. R. McMillan, Judge.

Andrew J. Shaw was convicted of throwing down a fence belonging to another, and not rebuilding the same, and on appeal the judgment was aformed. Defendant thereupon amended the record by certiorari, and moved for a rehearing. Rehearing granted, and judgment reversed.

The prosecution in this case was commenced by an affidavit made by one W. P. Gilbert, charging that Andrew J. Shaw "did unlawfully, maliciously, or negligently da

stroy, throw down, or break a fence or inclosure, and did fail to immediately repair or rebuild the same; the said fence being the property of affiant." The facts of the case relating to the claims of the defendant and of the prosecutor, Gilbert, to the contiguous lands, and the submission of their claims to arbitration and the award, are sufficiently stated in the opinion. It was shown by the evidence that, after the award was made by the arbitrators, W. P. Gilbert located his fence upon the line, which was supposed to be in accordance with the directions of said award, and that within a short time after the fence was so built the defendant threw down 36 panels of such fence, and failed to rebuild it. There was evidence introduced on the part of the defendant tending to show that the north end of said fence built by Gilbert was not joined to any fence or inclosure, and that said fence did not inclose any land.

Upon the introduction of all the evidence, the court, at the request of the state, gave to the jury the following written charge: "(1) If the jury believe beyond a reasonable doubt from the evidence that there was a dispute between Gilbert and the defendant as to where the line between them was, and that they agreed to leave it to arbitrators, and the arbitrators established the Christian line as the true line, and that in accordance with the decision the defendant moved his fence to his side of the line, and Gilbert built his fence on his side of the line, then each party owned to the Christian line; and if they further so believe that the defendant tore down Gilbert's said fence and left it down, in Shelby county, and within twelve months before the beginning of this prosecution, they should find the defendant guilty." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(2) The court instructs the jury that, if there is a probability of the defendant's innocence, they will find the defendant not guilty." "(9) The court charges the jury that, if they believe from the evidence that the witness Gilbert built his fence within six feet of the line called 'Christian Line,' they must find the defendant not guilty. (10) The court charges the jury that, if they believe from the evidence that defendant had a right to believe that Gilbert's fence was within six feet of the Christian line, they must find the defendant not guilty. (11) The court charges the jury that, unless they believe from the evidence beyond a reasonable doubt that defendant knew that the fence was not nearer than six feet to the Christian line, they must find the defendant not guilty. (12) The court charges the jury that, if they believe from the evidence that the fence alleged to be torn down was not joined at either end to another fence and did not inclose any land, they must find the defendant not guilty. (13) The court charges the jury

that, if they believe the evidence, they will find the defendant not guilty." From a judgment of conviction assessing a fine of $25, the defendant prosecutes the present appeal.

W. S. Cary and W. F. Thetford, for appellant. Chas. G. Brown, Atty. Gen., for the State.

SHARPE, J. Defendant owned the S. W. 4 of the N. E. 4 of a section of land, and W. P. Gilbert owned the adjoining S. E. of N. W. 4 of same section. Neither party claimed to own beyond the true line dividing his legal subdivision of the section from the other; but, that line being unascertained and in dispute, they had surveys made by the county surveyor, one Christian, who marked a surveyed line known as the "Christian Line." The survey was not satisfactory to the parties, and they submitted the ascertainment of the line to five persons as arbitrators, who acted as such, and made an award in writing establishing the Christian line as the true line of division, and containing the following provision: "Said A. J. Shaw is to move all his fencing on his land six feet inside of said line within 30 days; also the said W. P. Gilbert shall build all his fencing six feet inside of said line for the purpose of giving twelve feet for road or passway." The award was signed by the arbitrators, and also by defendant and Gilbert. Defendant's fence, which before the award had stood on Gilbert's side of the line, was after the award moved by him to his side of the line, and Gilbert thereupon built a fence on his side. The evidence was conflicting as to whether the fences encroached upon the line and roadway, that of the state negativing such encroachment on the part of Gilbert, while the defendant's evidence tended to show that Gilbert's fence at the point where the fence was torn down was built so that it touched a tree on the opposite of which was a blaze indicating the Christian line.

The arbitration appears to have been without any written submission, and, not conforming to the requirements of the statutory provisions for arbitration, its validity and effect must be judged of as an arbitration at common law. The statutory provisions are necessary to be observed when the award is to be given the effect of a judgment. Those provisions do not supersede arbitrations according to the common-law mode. Code, § 523; Ehrman v. Stanfield, 80 Ala. 118; Payne v. Crawford, 97 Ala. 604, 11 South. 725.

As a general rule, a submission to arbitration at common law could be made by parol. Byrd v. Odem, 9 Ala. 755; Martin v. Chapman, 1 Ala. 278; Smith v. Douglass, 16 Ill. 34. An exception seems to have prevailed when the title to the thing in dispute could not pass by parol, as in the case of the title to lands. Smith v. Douglass, supra; Byrà v. Odem, supra; Fort v. Allen, 110 N. C. 183,

14 S. E. 685. The mere matter of the locating the boundary of lands, however, does not involve the title. It relates only to the limit to which the land covered by the title extends. In Bowen v. Cooper, 7 Watts, 311, it is said that "the statute of frauds is inapplicable to an award made under a parol submission which had nothing in view beyond the settling of a dispute as to the boundary of land, and not the title of it. No right or title passes in virtue of the award. It merely fixes the boundary, and the title which existed previously becomes precisely located and limited by it."

A valid award upon such question of boundary is binding and conclusive upon the parties to it, not as transferring title not previously held, but by way of estoppel upon them to dispute the boundary so established. Payne v. Crawford, supra; Davis v. Havard, 15 Serg. & R. 165; Sellick v. Addams, 15 Johns. 197; Stewart v. Cass, 16 Vt. 663, 42 Am. Dec. 534. In this case there was no complaint of the award, but the assent thereto of tue parties is expressed by the' signing of their names at its foot, and as to the location of the line it was executed on the part of defendant by the removal of his fence to his side of the line, and the surrender thereby of the possession he had held of a strip of and on Gilbert's side, and on the part of Gilbert by the building of his fence on his side. The award, followed by such assent thereto, and by such recognition of the boundary established by it, was conclusive upon them as to the extent of the lands owned by them, respectively.

The roadway does not appear to have been a subject of dispute before the arbitration. Not being embraced in the submission, the award as to it would have been void but for the assent of the parties. Their signatures to the award are evidence of such assent, and of an agreement to leave space for the road, which might be enforced by the appropriate remedy.

But neither the award nor the agreement created any property right or easement in favor of either party beyond his boundary line. An easement is an interest in land, and the title is said to lie in grant. It may pass by deed or dedication, or by prescription, which presumes a grant. 6 Am. & Eng. Enc. Law, p. 143, and authorities there cited. There had been no user or possession of the road as such.

The offense is created by section 5624 of the Code, which by its terms applies to fences as well as inclosures, so that it was immaterial that the fence was disconnected at one end.

From what we have said, it follows that the court did not err in giving the written charge requested by the state.

Errors are assigned for the refusal of the court to give charges 2, 9, 11, and 13, requested by defendant, but the bill of exceptions fails to state whether those charges were given or refused. No error appearing,

the judgment of the county court will be here affirmed.

On Rehearing. (April 19, 1900.)

The return to the writ of certiorari granted in this cause brings up for review rulings of the trial court on certain charges requested by and refused to the defendant, which rulings did not appear in the transcript when the appeal was first considered. For the refusal of charges 1 and 2, the judgment must be reversed. A probability of the defendant's innocence is at least equivalent to a reasonable doubt of his guilt. Henderson v. State (Ala.) 25 South. 236; Carr v. State, 106 Ala. 1, 17 South. 350, 4 L. R. A. 380; Winslow v. State, 76 Ala. 42. The remaining charges requested by the defendant were properly refused. They are bad for reasons given in the opinion heretofore rendered, where, among other things, it was held that, under the facts disclosed, the defendant's property extended only to the boundary line established by the arbitration, and that he had no easement or other property right in that part of the projected roadway which lay on Gilbert's side of that line, and therefore no right to throw down Gilbert's fence, even though it stood within six feet of the boundary line. The judgment must be reversed, and the cause re manded for another trial.

1. Where a railroad company constructed its roadbed and depot grounds so that surface water which ordinarily flowed in a different direc tion was made to flow on plaintiff's land, it was liable for the injury occasioned thereby.

2. In an action against a railroad company for injury sustained by diversion of surface water so that it flowed over plaintiff's land, only actual damages sustained before the commencement of the suit can be recovered.

3. In an action against a railroad company for injury sustained by the overflow of plaintiff's lands by reason of the diversion of surface water, evidence of the continuing consequences of the injury is admissible, to inform the jury of the extent and character of the tort.

4. In an action for overflow of surface water, evidence that the water standing under plaintiff's house had a tendency to rot the foundation was competent, though it was not shown that any beam had in fact rotted.

5. A suit for damages for causing the over flow of surface water by the erection of embankments and by excavations being for the active creation of a nuisance, and not merely a wrong arising from negligence, the degree of care used by the defendant in constructing water ways is immaterial in determining the right to recover actual damages.

6. In an action against a railroad company for so constructing its road as to cause surface water which would naturally flow in other di