[13] The condition results that the legal, this, is given in favor of the husband. The title did vest in the grantee, subject to be de- benefit and enjoyment of the exemption infeated by the wife's avoiding the conveyance ures to his wife and infant children, but by in a mode authorized by law, and this must and through the personal exemption to the be done before the legal title passes back husband. The title to and estate in the homefrom the grantee to the husband grantor. stead are in the husband, so long as he lives, or the relation of husband and wife, or father and infant child, shall exist. Neither the wife nor the children have any right or estate in the homestead during the life of the husband or father. The wife, however, is given the power to prevent the husband's alienating the homestead; but she is given no power to prevent the husband from abandoning it, and thereby destroying its character as a homestead. The husband, however, cannot deprive the wife or children of their right to continue to occupy and enjoy it as a homestead by abandoning them and the homestead. The husband does have the right in law to select the homestead, and to change it at his will, or to abandon it and carry the wife and children with him; but he has no right to abandon them and thus deprive them of the right to occupy the homestead. Lewis v. Lewis, 77 South. 406; Winkles v. Powell, 173 Ala. 46, 51, 52, 55 South. 536. The difference between abandonment of the home by the husband, and abandonment of his family, the one act being lawful, and the other unlawful, is brought out in the last two cases cited. So it may be that both appellee and his wife have abandoned the land in question as a homestead, and that if the wife should now disaffirm her acts as to consenting to, signing, and acknowledging the alienation of the once homestead, it would not be effective to revive the right of homestead therein to either the husband or the wife. As to this, however, as before stated, we do not decide, because not before us, as the record fails to show that the wife has ever disaffirmed her acts of infancy in alienating the homestead.

[14] It may be that there was or has been such an abandonment of the homestead, by both the husband and the wife, as to defeat all homestead rights of either to the lands in question, and that the avoidance, now, by the wife, by her assenting to, signing, and acknowledging the conveyance might affect her dower interest only. As to this, however, we do not now decide, because the question is not before us, and may never be. If the husband now has no homestead rights in the lands, if he has lost these rights by the deed in question or by abandonment, then the wife's claim or right thereto may have been lost by this abandonment, though not necessarily so. Of course the husband cannot destroy the wife's homestead right by abandoning both it and her. She may, in case the husband without just cause abandons both her and the home, return to the homestead and continue to occupy it as against the husband, his creditors, and the world. If, however, husband and wife abandon one homestead and acquire another, then, of course, both lose thereby all homestead rights they had to the first. In case, however, the conveyance of the first was absolutely void, their acquiring the second homestead would not render the conveyance of the first homestead valid. If the conveyance of the first was valid and remained valid until another homestead was acquired by both the husband and the wife, it may be that neither could thereafter avoid the conveyance of the first merely because it was once, but not then, the homestead. As to this, however, we decide nothing, because not before us.

[15] The acts of the infant wife in this case, which she may affirm or disaffirm, are of a peculiar nature. As we have shown, the acts of hers authorizing or allowing the husband to alienate the homestead do not constitute a contract on her part, in such sense that she becomes a party thereto. The acts were of such a nature, however, that she did there by relinquish her right to veto the alienation of the homestead, and constituted her consent thereto, and, if the statutes were followed, a relinquishment of her right to dower in the land conveyed. Both of these rights are marital and are given by law, and both may be relinquished in the manner provided by law. These acts of hers, in thus surrendering or relinquishing these rights, however inchoate they may have been, were nevertheless of such a nature as that she may avoid them on the ground of infancy, or ratify them, on arriving at full age. The homestead right is of constitutional and statutory origin. The extent, nature, and character of the right depends solely upon the law which thus creates it. The exemption right, in cases like

[16] The conveyance and alienation, as we have before said, was valid until disaffirmed by the infant wife. The husband has no option to affirm or disaffirm her acts in the premises. The bringing of an action in ejectment by him, to recover the premises, cannot of itself amount to a disaffirmance by the wife. It therefore results that the plaintiff, appellant here, is not thus far shown to have any right or title which will enable him to recover the lands in his action of ejectment. The respondent, appellee, appears to have a complete and adequate remedy at law to the action of ejectment.

[17] Therefore there is no equity in complainant's bill to enjoin the prosecution of the action, which he can defend if the allegations and proof are true. Consequently the trial judge properly dismissed complain ant's bill; and the decree is affirmed. Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

(201 Ala. 290)

and defendants appeal. Reversed and remanded.

The following are the pleas directed to be

MCGEEVER et al. v. TERRE HAUTE
BREWING CO. (6 Div. 651.)
(Supreme Court of Alabama. Jan. 17, 1918. set out:
On Rehearing, Feb. 16, 1918.)

1. APPEAL AND ERROR 1096(3)-REVIEW-
SUBSEQUENT APPEAL.

All assignments of error referable only to matters preceding the former appeal and rever sal and not shown to have been subsequently passed on will be stricken.

Plea 9:

For further answer to complaint and each count thereof defendant says that said contract by plaintiff and said Siegel, without the knowl mentioned in complaint was mutually abrogated edge or consent of said defendants, or either of them, in the manner following, to wit: That on June 1, 1912, plaintiff appointed said Siegel as his agent for all beer shipped by plaintiff to said Siegel during the months of June, July, and August, 1912, and for the price of which this suit is brought, and that thereupon said plaintiff and said Siegel in pursuance of said agency procured the excise commission of Jefferson county to is sue said Siegel a subsidiary license as agent of plaintiff under and by virtue of the license theretofore issued plaintiff to do business in the year 1912 in Mobile county as a wholesale brewer under section 12, Acts 1911, p. 266, and that by reason of the foregoing, and with the intention on the part of defendant and said Siegel in conspiring to defeat the state of Alabama and Jefferson county of the license of $1,500 contrary to the laws of said state, and defendant further averred that said conspiracy on the part of said plaintiff and Siegel was a device or scheme to violate the prohibition laws of the state.

The demurrers to this plea were as fol

The contract of a guarantor must be strict-lows: ly construed according to the letter of the undertaking.

5. GUARANTY 53(1)-DISCHARGE OF GUARCHANGING CONTRACT WITHOUT

ANTOR

CONSENT.

The contract becomes a part of the agree ment by which a third party binds himself as guarantor for its faithful execution, and its provisions cannot be waived or changed to affect his interests without his consent.

6. GUARANTY 56-DISCHARGE OF GUARANTOR-EXTENDING TIME OF PAYMENT.

The provision in a contract, "this, however, can be altered or changed by consent of the first party," held to refer to the words immediately preceding "this," and to permit parties to extend time for payment after, but not before, termination of contract except by permission of guarantors.

7. GUARANTY 86-SUFFICIENCY OF PLEA.

A plea setting up release of guarantors by unauthorized extension of time of payment without their consent, held to state a defense, and not subject to demurrer.

8. GUARANTY 86-PLEA-INDEFINITENESS.

A plea of guarantors of a contract alleging conspiracy of parties thereto, without knowledge of guarantors, to violate a liquor license law, held not specific as to contract referred to, and therefore subject to demurrer.

(5) It does not appear from such suit that the alleged conspiracy therein set forth entered into or formed a part of said contract.

(6) It does not appear that the contract so entered into and referred to therein entered into or formed a part of the alleged conspiracy.

(7) It does not appear from said plea that the contract therein referred to was any consideration of an inducement to the alleged conspiracy. Plea 10:

Answering each count separately and severally defendants say that said bond sued on is conditioned for the faithful performance of a certain contract between plaintiff and said Siegel which is set out in the complaint, in which said contract it is provided that plaintiff should furnish to said Siegel certain quantities of beer in carload lots upon limited credit as follows: "All beer sold and shipped by the first party to second party under this agreement shall be paid for by the second party in cash or New York Exchange as follows: When the fourth car is ordered, the first shall be paid for, etc., and settlement shall continue in like order throughout the terms of this contract, that is, the second party shall have a line of credit equivalent to three carloads of beer," and defendants say that after shipping three cars of beer under the terms of said contract, to wit, two cars on May 14, 1912, each aggregating 24,000 pounds, and one car on May 15, 1912, aggregating 24,000 pounds, and without defendants' consent, plaintiff shipped another car to said Siegel on, to wit, May 21, 1912, and before said Siegel had paid said plaintiff for said first, second, or third carloads of beer, or either of them, and without requiring said Siegel to pay for said first, second, or third carload of beer, or either of them, and defendants say that in so extending the time for payment for three said carloads of beer as aforesaid, these defendants were thereby released from liability on said Appeal from Circuit Court, Jefferson Coun- bonds sued on, and defendants further say that ty; H. A. Sharpe, Judge. said plaintiff continued to ship beer to said SieAction by the Terre Haute Brewing Com-gel subsequent to May 21, 1912, and that all pany against Hugh McGeever and others on a guaranty bond. Judgment for plaintiff,

9. GUARANTY

GUARANTOR.

On Rehearing.

86 PLEA RELEASE OF

A plea in action against guarantor held to set up release of guarantor by extension of time of payment in the contract guaranteed, and not to set up mere indulgence or forbearance of plaintiff to enforce liability upon default.

beer sold and shipped by said plaintiff to said Siegel subsequent to May 21, 1912, was not shipped in accordance with the terms of said con

does not charge, unqualifiedly, the abrogation of the contract by the principals. It would invoke the legal deduction of abrogation of the contract, by the principals thereto, from the particular facts recited in the plea. These facts the pleader characterizes as a conspiracy to violate the then existing prohibition laws of the state of Alabama. The fifth, sixth, and seventh grounds of the demurrer were due to be sustained under the authority afforded by the doctrine of the opinion delivered on the former appeal. 73 South. 889, 891. It was there held that in order to operate to constitute a conspiracy to violate Alabama's prohibitory statutes, that would defeat a recovery on this bond, the contract, of which the bond undertook to assure faithful performance, must have had either a consideration tainted with the asserted unlawful purpose of these principals, or such unlawful design must have induced the formation of the contract declared on. While the demurrer was well sustained on the grounds indicated, it is by no means clear that the plea was sufficient with respect to the facts upon which the pleader's conclusion was rested. Indeed, it does not appear from any affirmation of fact made in the plea that the then existing laws of this state were in fact offended, or that they forbade what the pleader conceived was done by these principals, if, in fact, the purpose of their agreement ever became effective.

[4, 5] In plea 10, as amended, express reference was made to the fact that the con

The

[6, 7] In the contract between appellee and Siegel-a contract constructed on a blank form evidently prepared by the brewing company for use in the conduct of its business— this paragraph occurs:

"All beer sold and shipped by the first party to the second party, under this agreement, shall be paid for by the second party in cash or New York Exchange as follows: When the fourth car is ordered the first shall be paid for, etc., and settlement shall continue in like order throughout the term of this contract, that is, the second three carloads of beer, but upon the determinaparty shall have a line of credit equivalent to tion of this contract by consent or otherwise, all sums due and owing first party, shall be immediately paid; this, however, can be altered or changed by consent of the first party. The first party shall have the right at any time to terminate this contract for any default of second party hereunder." (Italics supplied.)

struction before restated, the italicized proAccording due effect to the rule of convision in the quoted paragraph cannot be soundly interpreted as authorizing the principals or either of them in that contract to alter or change the distinctly expressed line of limited credit thereinabove defined. The italicized expression is controlled in its application by the pronoun this, and that pronoun has reference only to the provision for immediate payment of "all sums due and owing said first party" at the time the contract should be terminated "by consent or otherwise." In other words, the authority to alter or change referred to in the italicized provision of the contract was intended to justify an extension of the time of payment after the determination of the contract tract mentioned in the plea was the same by consent or otherwise. If the italicized contract set out in the complaint. There is provision should be interpreted as authorno contention that the contract declared on izing an alteration or change in the line of in the first count was other than the same credit specifically defined violence would, in contract set out in the second count. our opinion, be done to the very grammatiplea must be read and considered in concal structure of the quoted provision of the nection with and in the light of the plead-contract. Plea 10, as amended, sought to asing it purports to answer. The plea, as amended, quoted the feature of the contract, of which the bond purported to guarantee performance, whereon the defendants relied to show such a change of the contract by the principals as operated to release the sureties on the bond. The form of this plea was unobjectionable. It is settled in this jurisdiction that the contract of a guarantor must be strictly construed, according to the letter of the undertaking. Manatee County Bank v. Weatherly, 144 Ala. 655, 39 South. 988, and authorities therein cited. Where a third party becomes interested in the contract entered into by other parties by binding himself to its faithful execution, the contract becomes a part of his obligation, and its provision cannot be waived or changed, in any material respect, so as to affect his interest without his consent. First National Bank v. Fidelity & Deposit Co., 145 Ala. 335, 40 South. 415, 8 Ann. Cas. 241; Ala. Fidelity & Casualty Co. v. Ala. Fuel & Iron Co., 190

sert a release of the guarantors in consequence of the shipment by the appellee of a fourth carload of beer, on, to wit, May 21, 1912, before said Siegel had paid the plaintiff for any one or all of the three cars previously shipped to Siegel without requiring Siegel to pay for said first, second, or third carload of beer, or either of them, all without the consent of the defendants; and that the plaintiff continued to ship beer to Siegel subsequent to May 21, 1912, and that all beer sold and shipped by plaintiff to Siegel subsequent to that date was not shipped in accordance with the terms of said contract; and that each of said shipments by said plaintiff to Siegel was at a time when Siegel was indebted to the plaintiff for three carloads of beer or more, and that these subsequent shipments were made without the knowledge or consent of any of these defendants; and the plea concludes with the averment that the first three cars of beer shipped by the plaintiff to Siegel have been

plea, therefore, asserts a departure by the principals from the limited line of credit by which the sureties' contractual obligation was to be measured, and to conform to which limited line of credit the brewing company was obliged if it would avoid the release of the sureties from the obligation of the guaranty on which the brewing company declares. It was error to sustain the demurrer to plea 10 as amended.

[8] Plea 11 was subject to the same objection, taken in the demurrer, as was plea 9, treated above in this opinion. The plea is not specific in its reference to the contract referred to therein. On the face of the plea it is at the very least doubtful whether the allusion to a contract had reference to the contract copied in the second count, or to some other contract between the principals. There was no error in sustaining the demurrer to plea 11.

stipulating for a limited line of credit and the phrase, "this, however, can be altered or changed by consent of the first party," a thought in opposition to that expressed in defining the limited line of credit, and evincing, unmistakably, a purpose to require immediate payment of what was due "upon the determination of the contract by consent or otherwise." The interposition of this antithetical (to the preceding provisions for a limited line of credit) proposition absolutely forbids the reference of the succeeding phrase, beginning with this, to expressions preceding the phrase thus interposed. To transpose the phrase beginning with this so as to visit its qualifying effect upon the provisions plainly defining the limited line of credit would, we think, do violence to the very grammatical structure of this paragraph of the contract. If this antithetical proposition had not been interposed, as it A consideration of the excerpts from the is, there would be no hesitancy in according oral charge of the court, to which exceptions the phrase, beginning with this, the effect were reserved and assigned for errors here, to qualify the provisions preceding it; but, does not disclose any error in these respects, as stated, the language and grammatical under the particular averments of the plead-structure of the contract places an insuperings constituting the issues tried in the court below. The trial court was correct in its view that the alteration of the contract, if such was made, must have been material. For the error committed in sustaining the demurrer to plea 10, as amended, the judgment is reversed, and the cause is remanded. Reversed and remanded.

ANDERSON, O. J., and SOMERVILLE and GARDNER, JJ., concur.

On Rehearing.

able obstacle to that course. The use of the semicolon-a mere matter of punctuationcannot be regarded as evincing an intent to refer the phrase, beginning with this, to provisions preceding the antithetical expression which itself immediately precedes the phrase to the interpretation of which a review of plea 10 as amended has invited our consideration.

The insistence, as upon the authority of Saint v. Wheeler, 95 Ala. 362, 376, 10 South. 539, 36 Am. St. Rep. 210, that this plea only asserts that the plaintiff extended to Siegel "mere indulgence," merely forebore to take steps to enforce liability upon default, is not justified by the averments of the amended plea 10.

The pith of the plea is that the plaintiff accorded Siegel credit beyond the limit of credit stipulated in the contract, by which instrument alone the obligation of the sureties was measurable and could be preserved.

The application for rehearing is denied.

MCCLELLAN, J. [9] The conclusion that error underlies the judgment results from the ruling of the trial court in sustaining plaintiff's demurrer to plea 10 as amended, and this result is contingent upon the construction taken of the before-quoted feature of the contract between Siegel and the plaintiff; more particularly upon the interpretation accorded the phrase, italicized in the quotation ante, "this, however, can be altered or changed by consent of the first party." The elaborate argument in support of the plaintiff's application for rehearing has been accorded full consideration. The court remains satisfied with the views announced in the original opinion. Without assuming to restate the argument, it will suffice to note that the argument against the sufficiency of the amended plea, when assailed by appropriate demurrer, omits to take due account of this phrase, "but upon the determination of this contract by consent or otherwise, all sums due and owing said first party, shall be immediately paid." The word but, in In equity cases where there was no testithat phrase, is employed in "an adversative mony taken orally in open court, no presumptions are indulged as to findings of fact on sense with reference to what precedes," thus which a decree is based, under Code 1907, interposing between the preceding provisions | 5955, subd. 1; Gen. Acts 1915, p. 705.

(201 Ala. 293) BLAIR et al. v. JONES et al. (4 Div. 760.) (Supreme Court of Alabama. Feb. 14, 1918.) 1. EQUITY 427 (1)-DECREE-PLEADING

MULTIFARIOUSNESS.

court should grant such relief as justice and
equity may require, although the bill is multi-
farious, under Code 1907, § 3212.
2. APPEAL AND ERROR

Where there is no demurrer to a bill, the

931(1)—REVIEW—

PRESUMPTIONS-EQUITY CASES.