agreement for its retention, and follows the land in the hands of the grantee, who is bound by this special equity affecting it as a charge, of which he may have notice: Pyland v. Reeves, 53 Ala. 132; 25 Am. Rep. 605; Moore v. Worthy, 56 Ala. 163; Sims v. National Com. Bank, 73 Id. 248.

The vendor's lien exists, therefore, unless it is shown to have been waived or abandoned by some act of the complainant, and the burden of proving such waiver is cast on the defendants, who assert it as a fact: Owen v. Bankhead, 76 Ala. 143. No fact is shown by the record indicating such intention on the complainant's part. The dealings between Luling and Mrs. Crampton, whatever may have been their effect as between themselves, could not affect the rights of the complainant in this case, Luling himself setting up no priority of lien on the land, — his mortgage debt having been satisfied.

2. The coverture of Mrs. Crampton, while it may have been a complete defense to an action against her at law on her note, was no answer to a suit in equity to enforce a vendor's lien against the land sold by the complainant. It is as unconscionable for a married woman to get the land of another, and keep it without paying the purchase-money, as for one sui juris to do the same thing: Carver v. Eads, 65 Ala. 190; Pylant v. Reeves, 53 Id. 132; 25 Am. Rep. 605.

3. Under the facts of this case, the defendant had no right to abate the amount of the purchase-money on account of the alleged deficiency of the land described in the deed. This supposed deficiency arises from the fact that the lot sold lacks about five feet of being as deep as stated in the deed from complainant to Luling. The error, therefore, is one of estimated distances in measurement. The testimony shows very clearly that the complainant owned and occupied what was known as "the Ingersoll property"; that no representations were made as to its area; that it was sold in gross, and not by the foot; and that the extra five feet claimed by the purchaser was no part of the property. The important fact is shown, moreover, that the lot in controversy was bounded on three sides by a brick wall, and on the remaining side by an iron fence, all of which was patent to ordinary observation and known to the purchaser. The deed described it as bounded on the east side by Conception Street, and on the other three sides by other lots of land which are definitely described. The settled rule in the de

scription of boundaries to land is, that monuments, whether natural objects or artificial marks, are allowed to dominate courses and distances given in deeds: 1 Greenl. Ev., 14th ed., sec. 301, p. 392, note 2. For this reason, abutting lands, when definitely described, control courses and distances, especially where they are not actually marked off, but are arrived at by estimation: 3 Washburn on Real Property, 5th ed., 427-434; Younkin v. Cowan, 34 Pa. St. 198; White v. Williams, 48 N. Y. 344. The reason of the rule is, that where there is a discrepancy between two descriptions, the one will be adopted as to which there is least liability of mistake: Miller v. Cherry, 3 Jones Eq. 29. Rejecting the description which is most apt to be erroneous, the law regards it as a mere misdescription, and not as a warranty of the quantity of land intended to be conveyed: Rogers v. Peebles, 72 Ala. 529; Wright v. Wright, 34 Id. 190; 3 Washburn on Real Property, 430, 431.

Under the foregoing principles, the demurrer to the bill was properly overruled by the chancellor.

The other assignments of error do not reach the merits of the case, and need not be considered.

The decree rendered is free from error, and must be affirmed.

VENDOR'S LIEN, EXISTENCE, WAIVER, AND ASSIGNABILITY OF: Schnebly v. Ragan, 28 Am. Dec. 195, and note 199; Gee v. McMillan, 58 Am. Rep. 315; Sloan v. Campbell, 36 Id. 493; Madden v. Barnes, 30 Id. 703; Andrus v. Coleman, 25 Id. 289; Kendrick v. Eggleston, 41 Id. 90; Fouch v. Wilson, 28 Id. 651; Fonda v. Jones, 2 Id. 669; Hecht v. Spears, 11 Id. 784.

SUBSISTENCE OF VENDOR'S LIEN AGAINST MARRIED WOMEN: Kent v. Gerhard, 34 Am. Rep. 612.

VENDOR WHO HAS EXECUTED ONLY BOND TO CONVEY HAS LIEN FOR UNPAID PURCHASE-MONEY: Stevens v. Chadwick, 15 Am. Rep. 348.

BOUNDARIES OF LANDS, WHAT CONTROLS: See Paul v. Carver, 67 Am. Dec. 607; Franklin v. Dorland, 87 Id. 111; Stafford v. King, 94 Id. 304.

AM. ST. REP., VOL. III.-46

MILLER V. LOUISVILLE AND NASHVILLE R. R. Co.

183 ALABAMA, 274.]

POWER OF ATTORNEY AUTHORIZING AGENT TO SELL principal's lands at a price not less than a specified sum imposes upon the agent the duty of selling and accounting for the highest price obtainable, although the power was executed upon a valuable consideration paid by the agent, and this latter fact does not authorize the agent to reserve or acquire for himself any interest in the purchase.

PURCHASER FROM AGENT, WHO ALLOWS the latter to acquire an interest in the purchase in violation of his contract with his principal, is not a bona fide purchaser, so as to entitle him to protection against the right of the principal to set the sale aside.

ON BILL BY PRINCIPAL TO SET ASIDE CONTRACT OF SALE made by his agent, on the ground of fraud and collusion between the agent and purchaser, an averment that plaintiff “immediately after learning that said pretended sale had been made repudiated it, tendered back the money and notes, and notified defendants that he would not comply with such contract," sufficiently sustains the equity of the bill on demurrer; but before relief will be granted under the bill, the money and notes must be brought into court.

UPON BILL FOR REFORMATION OF WRITTEN CONTRACT on the ground of mistake, whether it is necessary to allege and show a prior request for the correction of the mistake, quære.

EQUITY HAVING ACQUIRED JURISDICTION for one purpose strictly equitable will dispose of the whole controversy, even though, in so doing, it may be called on to administer relief which pertains to courts of common law.

BILL to rescind a contract for the sale of land, on the ground of fraud and collusion between plaintiff's agent and the purchaser, and also to reform the power of attorney under which such agent acted. The substance of the power is stated in the opinion. The bill alleges that the writing, "by mistake and inadvertence," failed to express the real contract of the parties, to wit, that one fifth of the purchase-money in the event of a sale was to be paid in cash, and that the five thousand dollars paid in hand was to be considered a part thereof. The bill alleges that the contract between the agent and purchaser was fraudulent and collusive, for the reason that the agent knew and concealed the facts that the purchaser was a minor, had no visible property, and was insolvent, and because there was an understanding and agreement between them at the time of the pretended sale that the agent was to have an interest in said real estate.

S. J. and B. L. Hibbard, for the appellants.

Hewitt, Walker, and Porter, and Martin and McEachin, for the respondent.

By Court, STONE, C. J. The Louisville and Nashville Railroad Company, by power of attorney bearing date December 16, 1886, empowered Miller & Co. to make sale of certain lands and mineral interests, at any time within thirty days, and "at a sum not less than five hundred thousand dollars." The contract, or power, whichever it may be termed, has an additional stipulation, which is unusual in such instruments. It contains no stipulation for compensation to the agents making the sale; but if it were simply silent on this subject, the law would imply a promise to make reasonable payment for the services to be rendered. It is not silent. On the contrary, it recites a consideration of five thousand dollars paid or to be paid to the railroad company, for the thirty days' privilege of making the sale. Options to buy and options to sell are sometimes bought and sold. To purchase, and at large price, the privilege of becoming the agent of another to make a sale is certainly an anomaly. It is an anomaly, because the agent stands in a fiduciary relation to his principal, and is not permitted to be interested in the purchase, nor to make a profit on the transaction beyond his reasonable compensation: 2 Addison on Contracts, 924; Adams v. Sayre, 76 Ala. 509. In the present case the agent was authorized to sell at not less than five hundred thousand dollars; and he was to sell as agent. It was his duty to sell for as much more as he could obtain, and whatever sum he might realize above the fixed minimum of five hundred thousand dollars he was bound to account for to his principal. Other clauses of the instrument might be commented on, but we need not. Parties, however, if sui juris, may make their own contracts; and if they violate no principle of law or of public morality, they must perform their contracts as they make them. It is our province to enforce, not to make, contracts for parties.

What we have to say in this case will be confined to the case made by the bill.

The bill charges that the alleged sale was to a minor, known to Miller to be such, and that the alleged purchaser had no property, which Miller also knew. It also charges that Miller was to have an interest in the purchase. Each of these charges, unexplained and unrebutted, implies bad faith and fraud on the part of Miller, and prima facie arms the railroad corporation with the right to disaffirm and annul the contract of sale. And Jones cannot claim to be an innocent bona fide purchaser, if he allowed the complainant's agent, with whom

he made the contract, to acquire an interest with him in the purchase. True, the averments of the bill as to the nature and extent of the interest Miller was to have are not very specific: See Flewellen v. Crane, 58 Ala. 627; Chamberlain v. Dorrance, 69 Id. 40; but we think them sufficient to uphold the equity of the bill, at this stage of the litigation. If deemed advisable, the charges can be made more specific.

Many of the grounds of demurrer complain that the complainant fails to tender the notes and money to the purchaser, and yet claims rescission. The bill avers that "on the eighteenth day of January, 1887 [the alleged sale was made January 14, 1887], and immediately after it was known to orator that the said pretended sale had been made, orator tendered to said Miller the said money and notes, repudiated the said pretended and unauthorized contract of sale, and notified said Miller and said Jones that orator would not comply with such contract." This averment would probably have been more complete, if it had offered to bring the money into court, to abide any order the court might make, and to bring in the notes to be restored to Jones, or to be canceled. But at the present stage of the proceedings we do not consider this omission fatal to the equity of the bill. Of course, the chancellor will not grant the relief prayed for without requiring the complainant to do equity.

the

If reformation of the contract was the sole purpose for which the bill was filed, it would then become necessary to inquire whether Miller should not have been requested to correct the alleged mistake before filing the bill to have it corrected: Robbins v. Battle-House Co., 74 Ala. 499. We have seen above, however, that the bill rests on an independent equity, alleged bad faith of Miller, in which Jones is charged to have participated. Having jurisdiction for one purpose strictly equitable, the court will dispose of the whole controversy, even though in doing so it may be called on to administer relief which pertains to courts of common law.

Affirmed.

RESCISSION OF CONTRACT IN EQUITY: See the notes to Hough v. Hunt, 15 Am. Dec. 572, 575; Johnson v. Evans, 50 Id. 672, 681; Bryant v. Isburgh, 74 Id. 657-662.