[Kimbrell v. Rogers.]

isfaction of such balance he was entitled to have the land sold. Whether there was anything due on the mortgage, was a disputed question in the case. The indebtedness claimed was denied by the answer of R. Kimbrell. The issue thus presented involved one of the equities upon which complainant's right to relief depended. This issue of indebtedness vel non was not determined by the decree of January 18th, but was by that decree referred to the register, and the essence of the relief prayed-the sale of the land for the satisfaction of the mortgage could not be, and was not granted, until after the coming in of the register's report, ascertaining indebtedness under the mortgage; the confirmation thereof, and the decree of sale of March 28th, 1888.-Garner v. Pruitt, 32 Ala. 13. The January decree was, therefore, interlocutory-it did not settle all the equities between the parties, nor fully adjudge the relief for which complainant prayed. That of March was final, and the appeal brings it and all previously rendered interlocutory decrees up for review.- Walker v. Crawford, 70 Ala. 567.

There was no error in the decree overruling demurrers for non-joinder and misjoinder of parties. Under the act of February 28, 1887, which was of force when the bill in this case was filed, the husband was not a necessary party defendant to a bill filed against a married woman, seeking to subject or charge her separate estate.-Marshall v. Marshall, 86 Ala. 383. The theory of the bill is, that the lands embraced in the mortgage belonged to Roland Kimbrell. The conveyance having been executed by his wife, in the manner prescribed by the statute for the relinquishment of her inchoate right of dower, she was a proper party defendant to the suit to foreclose the mortgage, and cut off that right by a sale of the fee. Sims v. Nat. Com. Bank, 73 Ala. 248; McGehee v. Lehman, Durr & Co., 65 Ala. 320.

The mortgage in terms conveys "the following described tract or parcel of land, to-wit: the property known as Kimbrell's grist and saw mill and gin, together with all the privileges and appurtenances belonging thereto, lying in Marengo county," &c. It was in evidence, that two acres of land, upon which the mill and gin were situated, had always been used in connection therewith, and was necessary to the enjoyment thereof. This land, we think, is embraced in the descriptive words of the conveyance, as "the tract or parcel of land known as the Kimbrell grist and saw mill and gin property." But, were this otherwise, the land manifestly is appurtenant to the mill and gin, and essential to their reasonable use; and while, ordinarily, land can not be said to pass as appurtenant to land,

[Kimbrell v. Rogers.]

if the land expressly granted does not admit of reasonable enjoyment without certain adjacent land, which has been constantly used with the land granted, it will also pass.- Woodman v. Smith, 53 Me. 81; Biddle v. Littlefield, 53 N. H. 508; Voorhees v. Burchard, 55 N. Y. 102; Esty v. Currier, 98 Mass. 502; Allen v. Scott, 21 Pick. 25.

The contention of appellants, that the mortgage is void, proceeds upon the assumption, that the land in controversy belonged to the statutory separate estate of Mrs. Kimbrell. The proof fails to support this assumption. On the contrary, there is no dispute but that the property belonged to her first husband, and passed to his heirs, who are defendants to this bill. Her claim to have acquired title by adverse possession, can not be allowed. The evidence is free from conflict, that she at no time claimed to hold otherwise than as the widow of Benjamin Rentz, and in recognition of the title of his heirs. Her only right, therefore, was to have dower assigned out of the land, and to occupy it until that could be done. This right lies in action only, and constitutes no estate in the premises. Reeves v. Brooks, 80 Ala. 26.

Whether her right to dower was barred by the lapse of twenty years from the date at which it might have been asserted (Barksdale v. Garrett, 64 Ala. 280), or whether, if still subsisting, it was, or could have been made, available in resisting the present bill, are questions which are not presented by this record, as will be seen further on, in such way as that we can consider them.

The land in controversy was sold and conveyed, in April, 1880, by the heirs of Benjamin Rentz, deceased, to the respondent, Roland Kimbrell. Two of the three grantors in that conveyance were of full age at the date of its execution. The third, Alice Rentz, now Alice McGehee, was a minor. That part of the purchase-money which belonged to the adults was paid. This deed, it is very clear, vested all the right, title and interest of the adult heirs in the respondent, Roland Kimbrell. The mortgage executed by the latter and his wife, it is equally clear, passed all his estate in the land conditionally, into the complainant. The decree foreclosing the mortgage, and ordering a sale of the land for its satisfaction, is certainly free from any taint of error which could prejudice or impair any right or interest of the adult heirs or their grantee, the defendant, Kimbrell. The plaintiff was, beyond question, entitled to have their interests foreclosed, and their estates in the property subjected to the payment of his debt. It may be conceded, that the undivided one-third interest of Alice McGehee did not pass by the deed of 1880 to Roland Kimbrell, because

[Kimbrell v. Rogers.]

of her disability of infancy, which is pleaded in this case, and that, of consequence, this interest did not pass by the mortgage to the complainant. It may also be conceded, without affecting the result of this appeal, that there was some outstanding property right in Mrs. Kimbrell, resulting from her survivorship of her first husband, which the mortgage was not efficient to convey. And as a deduction from these concessions, the decree may be admitted to be erroneous, in that it forecloses and orders to be sold the property rights of Alice McGehee and Mrs. Kimbrell. Yet, manifestly, the error in this regard affects only these two respondents. They alone have a right to complain of it, and to ask this court to reverse the action of the Chancery Court by which their rights are prejudiced. The error, if any, is without injury to the other appellants, and no reversal on account of it can be had at their instance. Norwood v. M. & C. R. R. Co., 72 Ala. 603; Gilman v. N. O. & S. R. R. Co., Ib. 566; Walker v. Jones, 23 Ala. 448.

This appeal is taken and prosecuted by all the defendants below. The assignments of error in this court are made by them jointly. The decree appealed from involves no error injurious to the appellants, E. B. Rentz, R. E. Rentz, or Roland Kimbrell. If it involves error working injury to the rights of the other appellants-an inquiry which it is not necessary to enter upon-they should have severed in the assignment of it. The former adjudications and settled practice of this court impel us to disregard assignments of error, made jointly by all the appellants, as to matters which are available, if at all, to some of them only.-McGehee v. Lehman, Durr & Co., 65 Ala. 320.

Those assignments which are directed against the decrees of July 24, 1888 (ordering petition for writ of assistance), and October 16th, 1888 (confirming report of register), must be stricken out in response to motion of appellee. The record shows that no appeal was taken from either of these decrees. Atkinson v. C. & N. Railway Co., 34 N. W. Rep. 63; Horn v. Volcano Water Co., 18 Cal. 142; Bornheimer v. Baldwin, 38 Cal. 671.

Affirmed.

VOL. XC.

[Snodgrass v. Coulson.]

Snodgrass v. Coulson.

Action on Common Counts.

1. Memorandum as evidence, or refreshing memory of witness; admission implied from silence.—A memorandum made by a witness at the time of the occurrence to which it relates, may not only be used by him for the purpose of refreshing his memory, but may be admissible as evidence of the facts stated, though he can not recollect them, if he states that he made the memorandum, and that he then knew the facts to be as stated; and although the memorandum may not be admissible under this rule, because the witness admits the inaccuracy when made, it may be admissible as showing an admission implied from silence, on proof that it was exhibited to the opposite party, and that he did not object to it.

2. When action lies for money had and received.-Under a contract for the sale of timber by plaintiff to defendant, to be cut, hauled and sawed into lumber, plaintiff to have one-fourth of what it made, he can not maintain an action for money had and received, without proof that the lumber has been sold, or otherwise converted by the defendant to his own use.

APPEAL from the Circuit Court of Jackson.

Tried before the Hon. JOHN B. TALLY.

This action was brought by Henry H. Coulson against Wm. E. Snodgrass, and was commenced on the 2d July, 1887. The complaint contained only common counts, each claiming $247.60; the first, as "due by account for the years 1885 and 1886;" the second, for goods and chattels sold during those years; the third, "for the following chatttels sold by plaintiff to defendant during the years 1885 and 1886," specifying 15,000 feet of lumber at $10 per thousand, 476 cross-ties at ten cents each, and one bale of cotton, of the value of $50; and the fourth, on an account stated. The defendant pleaded, "in short by consent, nil debet, payment, and set-off, with leave to give any special matter in evidence;" and issue was joined on these pleas.

On the trial, the plaintiff thus testified in his own behalf: "Defendant owes me by account for one-fourth of 60,000 feet of lumber, at $10 per thousand, $150; one bale of cotton, worth $50; and 476 cross-ties, at ten cents each, $47.60. I let him have the lumber. He told me it was worth $10 per thousand feet. The bale of cotton is for rent of my place for the year 1886, which he was to deliver to me. He got cross-ties from my land, and was to pay me ten cents for all he cut and

[Snodgrass v. Coulson.]

hauled off. He is entitled to the following credits, which leaves the balance due me $179.63. He got 60,000 feet of timber, so far as I could get at it. I got two men to measure the stumps where the trees were cut, and the distance from the stump to where the top was cut off, and the end of the top, and calculate the amount that way. I was not with the men at the time, and know nothing about it of my own knowledge. Defendant proposed to cut, haul and saw the timber, and give me one-fourth of what lumber it made. Streety and Beard were the men who measured the stumps, logs, &c. Then I made the calculation, and showed it to the defendant. He said he thought it was a little too high; think he said it was about 53,000 feet. The contract between us was, that the lumber was to be divided in the mill yard." He testified, also, that the defendant afterwards refused to deliver the lumber, claiming that plaintiff was to pay for the cutting and hauling of the timber.

Streety thus testified as a witness for plaintiff: "Beard and I made the measurement of the stumps and tops, and the distance between them, and then made the calculation according to Schribner's book. This is the memorandum of it on this little book, made at the time of the measurement, and is correct. The manner in which we arrived at the length and size of the logs made our estimate; it was sorter guess work. We did not make an accurate measurement of the trees or logs. That could not be done after the logs were taken away. Some of the logs were still there in the woods, about onefourth, I reckon, and several of the biggest. We measured them, too, and included it in our estimate of the lumber.” Beard testified to the same facts in substance, and recognized the memoraudum shown in the book. On this evidence, plaintiff" offered a statement of his account, and a little book with the memorandum of measurements made by Streety and Beard. Defendant objected to said memoranda as evidence, because the same was illegal and incompetent, and was admitted by them to be inaccurate and unreliable. The court overruled said objections, and permitted said memoranda to go to the jury; to which ruling and action defendant excepted."

The defendant asked the court to charge the jury, "If they believed the evidence, the plaintiff can not recover for the lumber in this action." The court refused this charge, and the defendant excepted; and he here assigns its refusal as error, with the admission of the memorandum as evidence.

R. C. BRICKELL, for appellant, cited Grant v. Cole, 8 Ala. 519; Acklen v. Hickman, 63 Ala, 494; Holloway v. Talbot,