a perfect equity, the rule did not prohibit him from introducing in evidence the first mortgage. We must not be understood as holding that the transfer by Paden of the mortgage was not sufficient to pass the legal title to his transferee. Section 983 of the Code of 1896 reads as follows: "A seal is not necessary to convey the legal title to land to enable the grantee to sue at law. Any instrument in writing signed by the grantor, or his agent having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument." Construing this section, see the cases of Wisdom V. Reeves, 110 Ala. 418, 18 South. 13; Ward v. Ward, 108 Ala. 278, 19 South. 354. Section 1040 reads as follows: "Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person, who, by assignment or otherwise, becomes entitled to the money thus secured." See the cases cited under this section. The view we take of the law and the evidence renders it unnecessary to consider any other question. Affirmed.

(118 Ala. 172)

Ex parte BREEDLOVE. (Supreme Court of Alabama. Oct. 29, 1898.) RECEIVERS-INTERVENTION-CROPPERS.

A cropper, who was ejected from possession of land, and of his crop grown thereon, and whose landlord successfully prosecuted another action of ejectment, and regained the land, and procured sequestration of the crop by a receiver, is, for the purpose of properly administering the fund, entitled as of right to intervene in the receivership proceedings.

Petition by A. C. Breedlove for a writ of mandamus. Writ issued.

M. N. Carlisle, for petitioner. R. L. Harmon, for respondent.

BRICKELL, C. J.

The following facts, among others, are disclosed by the petition in this case: The petitioner rented a tract of land from Mary W. Johnson for the year 1894, agreeing to pay as rent two bales of lint cotton. A statutory action of ejectment was brought against him for the land by one Martin. Petitioner gave notice of this suit to his landlord's agent, who promised that the suit would be defended, and that petitioner should be protected in his possession. No defense, however, was made to the suit. Martin recovered judgment therein, and under execution on this judgment was placed in possession of the land, together with the crop made thereon by the petitioner. Before the crop was gathered, petitioner's landlord brought a statutory action of ejectment for the land, and, under a bill in chancery filed for that purpose, had a receiver appointed to take

charge of and gather the crop. Judgment having been rendered for the plaintiff in this latter action of ejectment, and the proceeds of the crop being in the hands of the receiver, petitioner filed his petition in the receivership case, setting up the facts above stated, asking to be admitted as a party defendant in that case, and praying that his petition be taken as a cross bill; that process issue thereon; that the proceeds of the sale of the crop, less the amount due to the landlord as rent, be paid to him, etc. Thereupon the present application was made to this court for a writ of mandamus to the chancellor, requiring him to grant the petitioner's application to be made a party to the receivership case, and for general relief.

This is not an application by a stranger to intervene generally in a pending cause, and to exercise therein all the rights of an original party defendant. It is well settled in this state that a stranger has no such right of intervention. Ex parte Printup, 87 Ala. 148, 6 South. 418; Renfro v. Goetter, 78 Ala. 314. The petitioner does not seek the opportunity of making a defense to the bill for a receiver, or of defeating the object of that suit. He simply asserts the right to share in the fund which has been brought into court as the result of that proceeding. This court has fully recognized the right of a stranger to intervene only for the purpose of the proper administration of a fund which is in the custody or control of the court, and in which he, though not a party, is entitled to share. Ex parte Printup, supra; Carlin v. Jones, 55 Ala. 630. It is the right of intervention recognized in these cases which is asserted in the present case. The court by its receiver took possession of the crop in order to protect the rights of the landowner. A tenant of the landowner may also have an interest in the property so sequestered, the assertion of which does not involve a denial of the rights of the landowner, but merely presents a question really involved in the due discharge by the court of the duty assumed by it of making distribution of the fund drawn into its custody by the receivership. The court is not to shut its eyes to the fact that there may be other claims upon the fund besides that of the complainant. The result of recognizing and enforcing such claims is not to render the process of the court ineffectual for the protection of the suitor who has invoked it, but to prevent its being abused to the injury of third persons. A proper administration of the fund requires the consideration of such claims, when duly presented. Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27. Let the writ of mandamus issue, directing the chancellor to vacate and set aside the decretal order denying the application of the petitioner to be made a party to said receivership suit, and to proceed to the hearing and determination of the claim presented by said application.

(118 Ala. 195)

SMITH, Sheriff, et al. v. HEINEMAN et al.1 (Supreme Court of Alabama. Jan. 6, 1897.) PLEADING-HARMLESS ERROR-FRAUDULENT CONVEYANCES-PARTNERSHIP ASSETS-LIABILITY OF SHERIFF FAILURE TO LEVY-INTOXICATING LIQUORS-ILLEGAL SALE.

1. A plea addressed to the whole complaint which constitutes an answer to one only of several counts is demurrable.

2. Error in sustaining a demurrer to a plea is harmless, where defendant, under other pleas, has the benefit of the facts alleged in the plea held bad.

3. A partner who owned half the assets of a firm, whose debts amounted to $2,000, sold his interest to another partner, on a basis of $3,400 for the entire assets; and two days thereafter the latter sold them to one having knowledge of the firm's debts, and of the former transaction, for $2,200, to be paid to the vendor in cash, with the exception of $500 to be paid to a creditor, no provision being made for the other creditors. The buyer admitted that after the sale the seller continued to draw money out of the business. Held to warrant a finding that the sale was fraudulent as to partnership creditors.

4. Where two of a firm of three partners owned the entire partnership assets, a sale of his interest by one of the former to the one owning the other half, without the third partner joining, does not make such assets the individual property of the buyer, as against partnership creditors.

5. A transfer of the partnership assets by two insolvent members of a firm to the other partner, though for a sufficient consideration, is fraudulent as to partnership creditors.

6. The presumption being that a sworn public officer has done his duty, one seeking to hold a sheriff liable for failure to make a levy has the burden of showing that there was property subject to levy which the sheriff neglected to seize.

7. Evidence that, several days before levying an attachment, there was more property on hand than the sheriff afterwards levied on, does not of itself create a presumption against a sheriff, so as to shift the burden on him to show that he levied on all the property there was, its probative force being for the jury.

8. An attaching creditor cannot complain of the sheriff's failure to levy on property subject to a prior bona fide incumbrance, exceeding the value of the property.

9. A levy under a prior attachment, which had been discharged, does not justify a sheriff in refusing to levy a subsequent attachment on the same goods.

10. The statutes prohibiting the sale of intoxicating liquor without a license do not apply to the sale en bloc of a saloon business.

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Samuel Heineman and Marcus Heineman, as partners, under the firm name of Heineman Bros., brought this action against Joseph S. Smith, late sheriff of Jefferson county, and the sureties on his official bond as such sheriff. Judgment for plaintiffs. Defendants appeal. Reversed.

The complaint was for a breach of the official bond of the sheriff, and contained two counts. The averment of the first count was that on the 12th day of January, 1891, an attachment in favor of the plaintiffs, and against Nathaniel Stanley, W. T. Johnson,

1 Rehearing denied November 5, 1898.

and Christopher Hinkle, partners, under the firm name of Stanley & Co., was placed in the hands of Joseph S. Smith, while he was acting as sheriff; that on the 14th day of January, 1891, the attachment was levied by the sheriff on certain personal property described in the first count of the complaint; that on the 5th day of June, 1891, a judgment was rendered in the attachment suit in favor of the plaintiffs therein, and the property levied on was condemned to the satisfaction of the judgment, and ordered to be sold for the satisfaction thereof; that on the 6th day of July, 1891, an order was issued to the sheriff to sell property so levied upon for the satisfaction of the judgment; and that the sheriff failed to sell such property, or account for the same. The second count alleged the issue of the attachment as stated in the first count, and that in addition to the property levied upon, as stated in the first count, the defendants in attachment had sufficient property in the county of Jefferson subject to levy to satisfy the demand of the plaintiffs in attachment, and that the sheriff, disregarding his duty, had failed to levy the attachment upon property sufficient to satisfy the attachment, whereby the plaintiffs' de mand was not collected. The defendants pleaded the general issue, and several special pleas, among which were the following: "(8) The defendants, for further answer to said complaint, say that they admit that the said Joseph S. Smith, as sheriff of said county, received said attachment mentioned in said complaint, as alleged in said complaint, and that he levied the same upon the property mentioned in said complaint of the property of the defendants in attachment; but said defendants aver that, after levy had been made, one F. M. Edwards claimed said property as his own, and made affidavit that said property was his property, and gave bond as claimant of said property, with sufficient sureties in double the value of said property, and thereupon said property was turned over to said Edwards, said claimant; and the defendants aver that said attachment was returned to the court issuing the same with the indorsement that said property so levied upon had been claimed by said Edwards, and that he had given said bond, which bond was also returned to said court from which said attachment had issued." To the eighth plea the plaintiffs demurred, upon the following grounds: (1) "The plaintiffs demur to the eighth plea, upon the ground that the same does not set forth any facts or assign any reason why said J. S. Smith, as sheriff, did not levy upon property of Stanley & Co. in addition to that named in said plea; the second count of the complaint alleging that said Stanley & Co. had sufficient property in Jefferson county, Alabama, sufficient to satisfy plaintiffs' attachment." (2) "Because the eighth plea purports to answer the whole complaint, but is an answer to only so much of the complaint as lays the negligence of

the sheriff in his failure to sell the property actually levied upon by him under plaintiffs' attachment, whereas the second count of the complaint claims damages for the failure of said sheriff to levy upon sufficient property of Stanley & Co. to satisfy plaintiffs' attachment, the said count alleging that Stanley & Co. had sufficient property in said county of Jefferson, state of Alabama, to satisfy plaintiffs' attachment." The court sustained this demurrer, and thereupon issue was joined upon the other pleas filed.

The evidence for the plaintiffs tended to show that Nathaniel Stanley, W. T. Johnson, and Christopher Hinkle, as partners, under the firm name of Stanley & Co., were, on the 12th day of January, 1891, doing business in the city of Birmingham, as saloon keepers; that they kept two saloons, one situated on First avenue, and the other on TwentyFirst street, in the city of Birmingham; that Heineman Bros. had sold to Stanley & Co. goods, and on January 12, 1891, had sued out and placed in the hands of the defendant J. S. Smith, as sheriff of Jefferson county, an attachment against said Stanley & Co.; that on January 14, 1891, said attachment was levied upon the property found in the saloons which had been kept by Stanley & Co., on First avenue and Twenty-First street, with the exception of the bar fixtures. It was shown, both by the return of the sheriff upon the writ of attachment and the other evidence, that, upon the levying of said attachment, F. M. Edwards, as claimant, gave bond in double the value of the property levied upon, with sufficient surety, and said property was delivered to said Edwards. The plaintiffs proved that, at the time of giving said claim bond for the property so levied upon, said Edwards did not make affidavit that he owned the property levied upon. On June 5, 1891, Heineman Bros. recovered a judgment against Stanley & Co. for the full amount of their claim. The evidence for the plaintiffs further tended to show that on June 6, 1891, W. T. Johnson, of the firm of Stanley & Co., sold out his interest in the firm to Nathaniel Stanley; that Christopher Hinkle was a nominal partner in said firm; that, when making the inventory of the stock in the stores owned by Stanley & Co., F. M. Edwards was present during part of the time, and knew that the arm of Stanley & Co. were greatly indebted; that the invoices which were seen by said Edwards prior to the making of the sale by Johnson to Stanley showed the bill of goods bought, and the amount of the indebtedness of Stanley & Co.; that Edwards was on intimate terms with Nathaniel Stanley, and in the negotiations for the sale by Johnson to the latter Edwards was present when Stanley stated that the firm was badly in debt. It was shown by the evidence that on January 8, 1891, Nathaniel Stanley sold to F. M. Edwards the entire stock and property formerly owned by Stanley & Co., including

the bar fixtures and outfit in the saloon on First avenue and in the saloon on TwentyFirst street. Edwards paid $2,200 in cash therefor. The evidence for the plaintiffs tended to show that this sale was fraudulent; that, at the time of making such purchase, Edwards knew of the insolvent condition of Stanley, and the businesses which he was conducting, and knew that he was indebted to the plaintiffs in this action; while the testimony for the defendants tended to show that Edwards knew of no indebtedness which was due by Stanley & Co. or by Nathaniel Stanley, except $500 which was due to J. S. Smith, the defendant in this case, and which was paid to said Smith as a part of the $2,200, the purchase price of the business from Nathaniel Stanley, and that the purchase by Edwards was a bona fide purchase upon a present consideration. It was shown that, at the time of making the purchase from Nathaniel Stanley, Edwards executed a mortgage on the bar fixtures in each of the places of business, to secure the payment of money which he borrowed for the purpose of making the cash payment to Stanley, and this mortgage was in existence at the time of the delivery of the attachment, sued out by the plaintiffs, to the sheriff. The other tendencies of the evidence necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. Upon the examination of W. T. Johnson as a witness for the plaintiffs, he was asked the following question: "Had Stanley & Co. paid for a license-city, state, and county-at the time of the sale made by you to Stanley, for that year?" The defendants objected to this question, upon the ground that there was better evidence of the matters inquired about, and that it called for immaterial testimony. The court overruled the objection, and the defendants duly excepted to this ruling of the court. The witness answered that Stanley & Co. had not taken out a license at that time. The cause was tried by the court without the intervention of a jury, and, after the introduction of all the evidence, the court rendered judgment in favor of the plaintiffs in the sum of $950.95. To the rendition of this judgment the defendants duly excepted. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

Walker, Porter & Walker, for appellants. Lane & White, for appellees.

BRICKELL, C. J. This is an action in which the appellees were plaintiffs, against the appellant Smith, as sheriff of Jefferson county, and the sureties on his official bond. The complaint contains two counts. In the first the breach assigned is that on the 12th day of January, 1891, an attachment in favor of plaintiffs against certain persons as partners, under the name of Stanley & Co., was placed in the hands of the sheriff, and that

on January 14th he levied the same upon certain described personal property; that plaintiffs obtained judgment in the attachment suit June 5, 1891, and condemnation of the property levied on; and that on July 6th an order was issued directing a sale by the sheriff of the attached property, but that the sheriff failed to sell or account for the same. In the second count, the issue of the attachment, and its levy by the sheriff, are alleged as in the first count; and it is also averred that the defendants had sufficient property in the county of Jefferson, subject to levy, to satisfy the demands of the plaintiffs, but that the sheriff had failed to levy upon such property.

Demurrers to all the pleas except the eighth were overruled, and as to the eighth were properly sustained. The plea was addressed to the whole complaint, but answered only the first count. Kennon v. W. U. Tel. Co., 92 Ala. 399, 9 South. 200. It also affirmatively appears that the defendants had, under other pleas, the full benefit of every fact alleged in the special plea; so that, if error had intervened, it would have been error without injury. Owings v. Binford, 80 Ala. 421. The fact that the sheriff received the attachment, and levied it upon certain property as the property of the defendants, is uncontroverted. As to the property so levied upon, the presumption obtains that it was liable to the attachment. Wilson v. Brown, 58 Ala. 62; Abbott v. Gillespy, 75 Ala. 180. The pre

sumption is not conclusive; and it was permissible for the defendants to show that the property was not, in fact, subject to levy. Wilson v. Strobach, 59 Ala. 488. It is not contended that the approval by the sheriff of the claim bond tendered by Edwards relieves the defendants from liability to account for the property on which the levy was made, nor removes from them the burden of proving that the property was not subject to the levy. Unaccompanied as the bond was by the affidavit the statute requires, a trial of the right of property was not instituted, and the delivery of the property to Edwards was not thereby authorized. Walker v. Ivey, 74 Ala. 475; Graham v. Hughes, 77 Ala. 590. The insistence on the part of the appellants is -First, that the property in fact belonged to Edwards; next, that if it did not, and it and all other property which plaintiffs insisted was subject to levy be treated as property of the defendants, it was all less in value than the amount exempt by law; and, lastly, if not so exempt, the value as fixed by the court (trying the case without à jury) was too large.

The sale by Stanley & Co., or Nathaniel Stanley, to Edwards, was of all the property in both places of business in the city of Birmingham, and it is not insisted that defendants owned any other property. The primary question is as to the validity of the sale. The court below, upon the evidence, answered this question negatively, and we are

not convinced there was error in the conclusion. Upon this inquiry we do not deem it necessary to refer to more than one phase of the evidence. We have many times drawn the distinction between a purchase of property in payment of an antecedent debt and a purchase on present consideration. In respect to the latter, we have repeatedly held that if the intent of the seller was to hinder, delay, or defraud creditors, and the buyer knew of such intent, or was informed of such circumstances as would lead a person of ordinary care and prudence to institute inquiry which, if followed up, would have disclosed the intent, then the transaction is fraudulent, though the vendee may pay an adequate and valuable consideration. Crawford v. Kirksey, 55 Ala. 283; Lehman v. Kelly, 68 Ala. 192; Dollins v. Pollock, 89 Ala. 351, 7 South. 904; Schaungut's Adm'r v. Udell, 93 Ala. 302, 9 South. 550. On January 6th, Nathaniel Stanley purchased the interest of his partner Johnson in the firm assets, on an agreement to relieve Johnson from the partnership debts, and the payment of $700 in money. In the transaction, Hinkle, it was assumed, had no interest, so that the interest of Johnson was one-half. The debts at that time were about two thousand dollars. Assuming Johnson's liability as between the partners to have been one-half, and the bonus paid him to have been $700, we would have $1,700 as representing half the value of the property, or $3,400 for the whole, on January 6th. The fact admitted in argument for appellants, and disclosed by the evidence, that Edwards knew of this sale, knew that Stanley assumed all liabilities and paid $700 excess for Johnson's half interest, is urged by the appellants as disclosing Edwards' want of knowledge that Stanley & Co. were insolvent or in embarrassed circumstances. Dissociated from later occurrences, and standing alone, such might be the inference. But when it appears that Edwards claims to have bought all the property two days afterwards, at $2,200, or $1,200 less than the estimate placed on it in the transaction between Stanley and Johnson, the inference is reversed. If the assets as compared with the liabilities were sufficient to justify the payment of $700 premium for Johnson's half interest on the 6th, was it not highly suggestive to Edwards that something was wrong, when, two days later, the same property was offered to him at the reduction named? He must have assumed either that Stanley had agreed to pay more than the property was worth, in which event the argument of the appellants in this aspect falls to the ground, or that some exigency had arisen in two days of sufficient importance to induce Stanley to suffer a large loss. Knowing that in the original trade the assets exceeded the liabilities only by some $1,400, Edwards agrees to pay for the property a sum which exceeded the liabilities only by $200. And this sum was to be paid to the debtor in cash (less $500 to be

paid Smith), with no security for other creditors or provision for their payment. When, in connection with these facts, the intimate relations of the parties are considered, together with the admission by Edwards (deposed to by Bernard) that Stanley continued to draw money out of the business after the sale, we are of opinion the finding of the court below that the sale was fraudulent should not be disturbed.

Eliminating Edwards' purchase, it is next insisted that all the property of the defendants did not exceed in value the amount exempt by law; and the principle is invoked that the sheriff cannot be held liable for failure to levy upon exempt property. This question cannot arise on this record, for the reason that in respect to partnership property no exemption can be claimed as against partnership debts. It is expressly provided by statute (Code 1886, § 2513) as follows: "No property, real or personal, held or owned by partners as partnership property, or purchased with partnership funds for partnership purposes, shall be the subject of homestead or other exemption as against co-partners or partnership creditors." As against partnership creditors, Nathaniel Stanley did not, by virtue of his purchase from Johnson, become the sole owner of the property. There was another partner,-Hinkle. True, his interest is said to have been "nominal"; but this was so only as between the partners themselves. In respect to creditors, Hinkle's liability and his joint ownership of the partnership assets were actual, and not nominal. Schlapback v. Long, 90 Ala. 525, 8 South. 113. Nor would the result be different if Hinkle had joined Johnson in the sale. Both were insolvent, and the transaction would have been fraudulent as to partnership creditors. Aiken v. Steiner, 98 Ala. 355, 13 South. 510.

In respect to the property levied upon, the fact of the levy, as we have said, imposed, prima facie, a liability upon the sheriff to preserve and apply the property to the judgment when rendered. His discharge of the levy upon the mere execution of a claim bond, unaccompanied by affidavit, did not, as we have said, relieve him from this liability. Assuming that Edwards acquired no title by his purchase, the liability of the sheriff for the property levied on is beyond question.

But the burden was upon the plaintiffs to show the extent of their damage by proof of the value of the property. There seems to have been no special effort to prove the value of the specific property; but one witness (Frank) testifying on the subject, and he in a very indefinite way. The plaintiffs sought to prove, rather, the value of all the property upon which, it was insisted, the sheriff should have levied, as alleged in the second count, and which, it was claimed, largely exceeded in amount and value that actually levied upon. If there was property subject to levy which the officer neglected to seize, the burden was upon the plaintiffs to show it. The pre

sumption is that sworn public officers have performed their duty, and this presumption obtains until disproved by him who asserts the contrary. Nearly all the evidence adduced by the plaintiffs on this issue relates to the amount and value of the property on hand at the date of the sale from Johnson to Stanley. The highest estimate as of that date is Johnson's, who fixes the value of the property in the First avenue place at $2,300 (stock $1,400, and fixtures $900), and in the Twenty-First street house at $1,300 (stock $700, and fixtures $600); a total of $3,600. Frank testifies that he assisted in taking an inventory of the property, including fixtures in the First avenue store, at the time of Johnson's sale, and that its value was about $2,300. He agrees with Johnson that the stock was worth $1,400, and the fixtures $900. The estimates of Johnson and Frank relate, it will be seen, to a date six days before the plaintiffs' attachment was received by the sheriff; and it is contended for plaintiffs that, having thus fixed the amount and value, the burden was upon the defendants to account for any diminution. If, in a proceeding against Stanley & Co., such an issue was involved, there would be force in the proposition. In such case the presumption of a continuance of the status would operate against parties having special means, not open perhaps to others, of accounting for any loss or diminution. But the principle can have but limited, if any, application to a suit like the present, where the duty of accounting attaches only as of the time when the officer makes a levy, or should have made It was not the duty of the sheriff to account for any discrepancy between the amount of property in existence on the 6th day of January and the amount subject to levy when the process came into his hands. The issue was, not how much Stanley & Co. had owned a week prior to January 12th, but what property there was, subject to levy, on the day the writ reached the officer. To shed light on this issue, it was doubtless competent to prove the recent ownership by defendants of more property than was levied on; but such evidence created no presumption against the officer which would shift the burden of proof. It was merely evidence of a fact the probative force of which was a question for the jury, or, in this case, for the judge, since a jury was waived, considered in connection with any other evidence tending to corroborate or weaken it.

one.

Op

The evidence of but one witness (Frank) tended to show that all the property included in the sale from Johnson to Stanley was in the First avenue house on the day of the levy. He made no examination, and evidently testified from general appearances. posed is the evidence of Edwards, who says that when he bought (two days before the levy) the property in that store, aside from the furniture and fixtures, it amounted to but $400 in value; and the evidence of the sheriff and his deputy. The sheriff made the