the Southern Dredging Company, a corpora- The demurrers were sustained to each of the tion, on May 21, 1914, and payable on demand, counts, and plaintiff took a nonsuit, and prewhich note was indorsed by defe.dant, and plaintiff avers that demand, presentment, pro- sents these questions for review. test, notice of protest, suit, and all other requirements necessary to hold defendant, were duly waived by her; and plaintiff further claims interest on said note; and plaintiff avers that the note sued on, with indorsements thereon, is in words and figures as follows: "$200.00. Mobile, Ala., May 21, 1914. "On demand after date, without grace, we promise to pay to the order of People's Bank of Mobile, Alabama, two thousand and no/100 dollars. For value received. Payable at the People's Bank, in Mobile, Alabama. "The parties to this instrument, whether maker, indorser, surety, or guarantor, each for himself, hereby severally agrees to pay. this note, and waives as to this debt all right of exemption under the Constitution and laws of Alabama, or any other state, and they each severally agree to pay all costs of collecting or securing, or attempting to collect or secure, this note, including a reasonable attorney's fee, whether the same be collected or secured by suit or otherwise. And the maker, indorser, surety, or guarantor of this note severally waives demand, presentment, protest, notice of protest, suit, and all other requirements necessary to hold them. "Southern Dredging Co., "Henry Goldthwaite, Vice President." On the back of the said note is the following: "The undersigned indorsers assume the contract shown by the face of this note. Payable from Pass Aux Heron U. S. Government con tract, to be completed about June 1st, 1914. "Southern Dredging Co., "Henry Goldthwaite, Vice President. "R. Moore. "H. B. Moore." And plaintiff avers that at the time said note was given to it, and the loan evidenced thereby made to the Southern Dredging Company, a corporation, that it was the intention of the maker of said note, and of said plaintiff, that said note should be payable absolutely on demand, and that its payment should not be conditioned so as to make said note payable only out of a particular fund; and plaintiff fur ther avers that the memorandum on the back of said note, viz., "Payable from Pass Aux Heron U. S. Government contract, to be completed about June 1st, 1914." was placed upon said note merely as an indication of the fund out of which the maker intended to make an investment, and as a memorandum for the purpose of showing that the Southern Dredging Company intended using the money loaned to it by plaintiff and evidenced by said note in its work under the said contract. Stevens, McCorvey & McLeod, of Mobile, for appellant. Gregory L. & H. T. Smith, of Mobile, for appellee. SOMERVILLE, J. The notes sued on are dated May 21, 1914, and were presumptively executed on that date. They are payable “on demand after date." On their faces they are, as to their maker, unquestionably negotiable instruments, payable unconditionally, and without restriction as to the source from which the funds for their payment are to be drawn. The defendant did not execute the notes as a maker, but indorsed them before delivery, and is sued as indorser. Her liability depends upon the terms of her indorsement as expressed upon the back of the paper, viz.: "The undersigned indorsers assume the contract shown by the face of this note. "Payable from Pass Aux Heron U. S. Government contract, to be completed about June 1st, 1914." It is noteworthy that the maker of the notes signed this stipulation along with the two indorsers. The meritorious question presented by the demurrers is whether the indorsers are absolutely liable for the payment of the notes, or whether they are liable only in case the proceeds of the government contract were sufficient for that purpose. [1] It is well settled by the authorities that instruments drawn upon, or payable out of, a particular fund, are not negotiable bills or notes, because they do not carry the general personal credit of the obligor, and payment is contingent upon the sufficiency of the fund referred to. 8 C. J. p. 121, § 214; Waters v. Carleton, 4 Port. 205; West v. Foreman, 21 Ala. 400; Gliddon v. McKinstry, 28 Ala. 408; Blackmon v. Lehman & Co., 63 Ala. 550, 35 Am. Rep. 57; Heflin Co. v. Hilton, 124 Ala. 365, 27 South. 301; First Nat. Bk. v. Lightner, 74 Kan. 736, 88 Pac. 59, 8 L. R. A. (N. S.) 231, 118 Am. St. Rep. 353, 11 Ann. Cas. 596, 599; First Nat. Bk. v. Sullivan, 66 Wash. 375, 119 Pac. 820, Ann. Cas. 1913C, 930, and note 932; Kimpton v. Studebaker, 14 Idaho, 552, 94 Pac. 1039, 125 Am. St. Rep. 185, and note 196, 14 Ann. Cas. 1126. [2] In the case of bills of exchange,, neither the indication of a particular fund out of which the drawee is to reimburse himself, nor, indeed, any direction as to resulting debits or adjustments as between the drawer and drawee, are regarded as affecting negotiability, provided that the order to pay is itself absolute. The demurrers were first, because, by the terms of the indorsement by defendant of the note sued on, said note was payable out of the particular funds, and it is not averred that this fund was sufficient to pay said note. Said note is nonnegotiable, and it does not appear that suit was brought upon it against the maker to the first court to which suit could have been properly brought after the making of the indorsement thereon by defendant, nor is any lawful excuse for not bringing such suit alleged. Because the Southern Dredging Company is a corporation, [3] So, also, in the case of promissory and it is not shown that it was created under notes, the mere statement of the considerathe laws of Alabama, nor is it shown that it tion, or of the transaction out of which the has complied with the requirements of sec- promise to pay originated, does not affect netions 3651 and 3652, Code 1907, of Alabama.gotiability, since it does not qualify the obli gation to pay. The authorities cited above furnish many illustrations. [4] The principles under discussion have been codified in the Negotiable Instruments Law as follows: "An unqualified order or promise to pay is unconditional within the meaning of this chap: ter, though coupled with (1) an indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or (2) a statement of the transaction which gives rise to the instrument. But an order or promise to pay out of a particular fund is not unconditional." Code. § 4960 (Neg. Ins. Law, Sess. Acts 1909, p. 126, § 3). [7] Whether or not the maker of the notes was a foreign corporation doing business in Alabama, without preliminary compliance with its laws, is wholly immaterial to the question of defendant's liability upon her un dertaking in the premises; and that ground of defense is clearly without merit, whether presented by demurrer or plea. [8] Moreover, where a complaint does not show such a status, the burden is on defendant to plead it, and demurrer does not lie. A. W. R. R. Co. v. Talley-Bates Co., 162 Ala. 396, 404, 50 South. 341. the notes or any part thereof. An appropri ate amendment of the principal counts will therefore operate as an amendment of the eighth count, so as to show liability thereunder. [9] With respect to the eighth count of the Taking them at their face value, and giving complaint, it will suffice to say that deto the language used its plain and ordinary fendant's liability for the counsel fees claimmeaning, we are convinced that defendant's ed does not depend upon the negotiability indorsements on the notes here exhibited of the notes, but upon her liability to pay were qualified indorsements, and import, as an undisputable legal conclusion, that defendant's liability is limited to the fund to be derived by the maker of the notes from the government contract specified, and conditioned upon its sufficiency to pay the notes, whether in whole or in part. It is certainly true that as to the maker, the Southern Dredging Company, the notes import an unconditional promise to pay, and as to the maker the notes are manifestly negotiable instruments. [5] From this it is argued that defendant must also be unconditionally liable to pay, because she "assumed the contract shown by the face of the note." But "the effect of a written contract is to be gathered from everything which appears within its four corners, and any memorandum or agreement of the parties written upon the instrument, including memorandum on the back thereof, contemporaneously with its execution, and intended by the parties to constitute a part of the contract, is a substantive part of such bill or note, and limits or qualifies it in the same manner as if inserted in the body of the instrument." 8 C. J. p. 191, § 323, Here defendant plainly said, "I assume the contract shown by the face of the note, but I stipulate that the money to be paid shall come out of the Pass Aux Heron government contract as far as it may go." Let the judgment of the trial court be affirmed. Affirmed. ANDERSON, O. J., and MAYFIELD and THOMAS, JJ., concur. (201 Ala. 413) MCKENZIE et al. v. HIXON et al. (1 Div. 30.) (Supreme Court of Alabama. May 9, 1918.) 1. APPEAL AND ERROR 500(3) - ASSIGN MENTS OF ERROR-ABSENCE OF RULING. Assignments of error complaining of admission of evidence present nothing for review; there being no rulings on objection to evidence shown by the record. 2. ACKNOWLEDGMENT ~55(1)—CERTIFICATE— CONCLUSIVENESS. The act of taking an acknowledgment of a of acknowledgment in the form prescribed by conveyance being judicial in nature, a certificate law is conclusive of the facts and acts recited, unless the officer is shown not to have acquired acknowledgment, or unless the act of giving the jurisdiction of the person or persons making the acknowledgment was characterized by or affected with fraud or duress. 3. ACKNOWLEDGMENT MAY TAKE-COUSINS. 20(1)-PERSONS WHO [6] In this view of the matter, it is imma'terial what may have been the intention of the payee or the maker with respect to the Notwithstanding the character and quality obligations assumed; for defendant's liabili- of an officer's act in taking an acknowledgment ty rests solely upon the plain terms of her is judicial in nature, a first cousin of a grantee own undertaking, and cannot be enlarged in a deed is not disqualified to take and certify the acknowledgment of the grantors in executeither by the understanding of the other ing the conveyance; Code 1907, § 4626, as to parties, or even by any contradictory parol disqualification of certain judicial officers havagreement of hers. ing no application to taking of acknowledgment by officers. We hold that the complaint must show that the proceeds of the specified government contract were sufficient to pay the notes sued on, in whole or in part, and that plaintiff's recovery on defendant's undertakings must be limited to the amount of those proceeds not so applied by the maker. It follows that the ground of demurrer taking this objection was properly sustained. 4. ADVERSE POSSESSION 60(1)—WHAT CON STITUTES. Occupation of land in subordination, not in hostility, to title and right of grantees will not divest title by adverse possession. Appeal from Circuit Court, Monroe County: Ben D. Turner, Judge. Bill by Mahala McKenzie and others against Carl Hixon and others. From a de cree denying relief to complainants, and granting relief to defendants on their answer, treated as a cross-bill, complainants appeal. Affirmed. Charles L. Hybart, of Monroeville, for ap pellants. Barnett, Bugg & Lee, of Monroeville, for appellees. MCCLELLAN, J. The appellants filed this bill against the appellees to quiet title to the land described therein. The appellees constituted their answer a cross-bill wherein they sought the affirmation that the title to the land in question was in them. The appellants trace their claim of interest in the land from Aaron McKenzie, who died about 1913. The appellees (cross-complainants) rely for their title upon a deed, of date August 7, 1891, from Aaron and Mahala McKenzie to Alfred C. and Liston A. Hixon. The court below sustained and confirmed the claim of the appellees (cross-complainants) to the land in question, denying relief upon the original bill of the appellants. ficers to take and certify acknowledgments, some advice may be afforded by recourse to the rule of the common law whereby the disqualification of a judge to discharge a judicial function has been declared or defined. The rule at common law was that mere relationship to a party to a cause did not disqualify a judge, though the judge had the privilege of declining jurisdiction on that account. 15 R. C. L. p. 532; 23 Cyc. p. 583; 12 Ann. Cas. p. 516. This common-law rule has been generally abrogated, as was done in statutes of this state parent to Code, § 4626. Crook v. Newborg, 124 Ala. 479, 27 South. 432, 82 Am. St. Rep. 190; Pegues v. Baker, 110 Ala. 251, 17 South. 913, among others. The conclusion to which this common-law rule inclines the judgment upon the question under review is that the acknowledgment here assailed, on the ground that the officer taking it was a first cousin of the grantees, is not void. It is valid; and being valid and in proper form was not subject to impeachment on any ground other than those before enumerated, none of which were supported by evidence in this record. The deed was operative to pass the title of the McKenzies to the Hixons upon its delivery in 1891. [1] The assignments of error numbered 2 to 6, inclusive, complain of the action of the court in admitting items of evidence described in them. Since no ruling of the court on these objections to evidence is shown by the record, nothing is presented [4] A careful review of the entire evidence thereby for review. There are, in conse- bearing on the issue of adverse possession quence, but two questions presented for con- leads this court to the conclusion that the sideration here, viz.: Whether the deed appellants failed to sustain their contention from Aaron McKenzie and wife to the Hix- that the title of the Hixons had been divestons, executed in 1891, was a valid convey-ed by adverse possession. The weight of the ance; and, if so, whether adverse posses-evidence justified the conclusion of the court sion had divested the title acquired by the below that the occupancy of the land by the Hixons under this deed. [2] It is settled in this jurisdiction that the act of an officer authorized to take acknowledgments of conveyances is judicial in nature, and that the officer's certificate of acknowledgment, in the form the law prescribes, is conclusive of the facts and acts recited, unless the officer is shown not to have acquired jurisdiction of the person or persons making the acknowledgment, or unless the act of giving the acknowledgment was characterized by or affected with fraud or duress. Butler v. Hill, 190 Ala. 576, 67 South. 260, and decisions therein cited. McKenzies was in subordination, not in hostility, to the title and right of the grantees in the conveyance mentioned. The decree appealed from was well rendered. It is affirmed. Affirmed. ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. (201 Ala. 414) UNION MUT. AID ASS'N OF MOBILE v. REVIEW. [3] Notwithstanding the character and quality of an officer's act of taking an acknowledgment is judicial in nature, a first The conclusion of the trial court sitting cousin of a grantee in a deed is not disqual-without a jury is in lieu of the verdict, and the ified to take and certify the acknowledgment record it plainly appears that the finding was judgment will not be reversed unless from the of the grantors in executing the conveyance. not sustained by legal evidence. Code, § 4626, defining, though not exclusive- 2. APPEAL AND ERROR 1010(1)—Scope of ly, the causes of disqualification of judicial REVIEW. officers, has no reference or application to the taking of acknowledgments by officers. That statute applies, alone, to judicial officers in respect of their service in the administration of the law through actions, suits, or proceedings in the courts. Since there is Forfeiture clauses of insurance contracts are no statute defining the qualification of of- to be liberally construed in favor of the insur the trial court sitting without a jury, if sus- STRUCTION. 146(3)— CONTRACTS-CON ed unless the language is unambiguous and permits but one reasonable construction. 4. INSURANCE LIMITATIONS-BURDEN OF PROOF. stipulation that the assured should give notice and make proof of sickness by the 645(1)-DEFENSES-POLICY filing of the attendant physician's certificate, Where health policy limited benefit for ill-written upon the blanks furnished to memness of or caused by la grippe to two weeks in bers in the office of the association, and also each year, the fact that illness for which bene- the limitation: "But two weekly indemnity fit was demanded was la grippe, or resulted will be allowed for la grippe or disability therefrom, was a defensive matter to be pleaded and proved by the insurer. resulting therefrom, in any twelve calender 5. INSURANCE months." FECT. 550- PROOF OF Loss - EF In the absence of facts creating estoppel, the statement of insured in his proof of loss, as to the nature of his illness, is prima facie, but not conclusive, proof of the nature of the ill ness. 6. INSURANCE OF Loss. Statement in proof of loss by insured as to nature of illness is admissible against him, to show the nature of the illness. Appeal from Circuit Court, Mobile County; Saffold Berney, Judge. Action by Frank Carroway against the Union Mutual Aid Association of Mobile. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911, p. 449. Affirmed. Bestor & Young, of Mobile, for appellant. Stevens, McCorvey & McLeod and D. B. Goode, all of Mobile, for appellee. THOMAS, J. This suit was for sick indemnity alleged to have accrued on a policy of insurance. [1] It has been declared that, where the evidence before the judge trying without a jury was developed ore tenus, or partly so, the finding in the trial court will not be disturbed unless that conclusion is plainly contrary to the great weight of the evidence. Ahlrichs v. Rollo, 76 South. 37; Hackett v. Cash, 196 Ala. 403, 72 South. 52; Finney v. Studebaker, 196 Ala. 422, 72 South. 54; Gen. Acts, 1915, p. 824. Otherwise stated, the conclusion of the trial court is in lieu of the verdict of the jury, and the judgment of the court will not be reversed unless from the record it plainly appears that the finding was not sustained by the legal evidence. [2] The rule is otherwise where the court has erroneously excluded competent evidence. Dargan v. Harris, 68 (Ala. 144; Woodrow v. Hawving, 105 Ala. 240, 16 South. 720; L. & N. R. R. Co. v. Solomon, 127 Ala. 189, 30 South. 491; City of Ensley v. Smith, 165 Ala. 387, 51 South. 343; Thompson v. Collier, 170 Ala. 469, 54 South. 493; Finney v. Studebaker Corporation, 196 Ala. 422, 72 South. 54. A careful examination of the evidence convinces us that the judgment rendered was supported by the evidence. The suit was founded on two insurance contracts, executed by a mutual aid association, in which the association agreed to pay the assured a stipulated weekly indemnity in event of his sickness. The contracts contained the [3] Courts generally have declared that contracts of insurance will be liberally construed in favor of the assured, and that, if doubtful, they will be construed against the insurer. Union Cent. Relief Ass'n v. Johnson, 73 South. 816; Allen v. Standard Ins. Co., 73 South. 897; Empire Life Ins. Co. v. Gee, 178 Ala. 492, 60 South. 90; Equitable Life Assurance Soc. v. Golson, 159 Ala. 508, 48 South. 1034; National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 South. 45; Piedmont Co. v. Young, 58 Ala. 476, 29 Am. Rep. 770; Mobile Marine 27 Ala. 77. This rule is especially followed Dock & Mutual Ins. Co. v. McMillan & Son, in dealing with forfeiture clauses of insurance contracts. Equitable Soc. v. Golson, supra; Continental Casualty Co. v. Ogburn, 175 Ala. 357, 57 South. 852, Ann. Cas. 1914D, 377. Where the language is unambiguous, and but one reasonable construction of the contract possible, the court must expound it as made by the parties. Union, etc., Ass'n v. Johnson, supra; Empire Co. v. Gee, supra. [4] Under the clause of said contracts limiting liability to two weekly indemnities, for sickness designated la grippe, or for disability resulting therefrom, in any 12 calendar months, the illness of the plaintiff being shown, the burden of proof devolved on the defendant to show that his illness was la grippe or resulted therefrom, with consequent disability to plaintiff, and that defendant's liability therefor, that is, to pay not exceeding two weekly indemnities for and during the given 12 calendar months, had been discharged as per contract conditions. This limitation of liability, however, is in the nature of a forfeiture, for the benefit of the assurer, and is defensive matter to be pleaded and proved by the defendant. Equitable Life Assur. Society v. Golson, supra; Continental Casualty Co. v. Ogburn, supra; 25 Cyc. 925 et seq. [5, 6] The proof of sickness was made by giving the notice and filing the certificate of the attending physician, as per contract stipulations. That the certificate contained a declaration against interest as to the cause or nature of plaintiff's illness is not conclusive proof of the matter admitted. On the trial the plaintiff in such a case is not estopped to show that the misstatement in the proof as to the nature or cause of his illness was the result of mistake or ignorance, or was made under a misapprehension of the facts; that is, in the absence of facts creating an estoppel, as that the assurer has changed its position to its detriment in reliance on the statement of facts contained in the proofs furnished by the plaintiff, the assured may show the truth, and that the erroneous statement thereof contained in the proofs was the result of ignorance, mistake, or misapprehension of the true facts. 4 Cooley's Briefs, p. 3433 et seq.; 2 May on Insurance, § 465; 29 Cyc. 150; 8 Rose's Notes (U. S. Rep.) 491, 493; 13 Am. & Eng. Ency. Law (1st Ed.) 65; Knights Templars v. Crayton, 209 Ill. 550, 70 N. E. 1066; Supreme Tent v. Stensland, 206 Ill. 124, 68 N. E. 1098, 98 Am. St. Rep. 137; Modern Woodmen v. Davis, 184 Ill. 236, 56 N. E. 300: Bentz v. North Western, 40 Minn. 202, 41 N. W. 1037, 2 L. R. A. 784. Such preliminary proofs presented to an insurance company by an assured, in compliance with the conditions of the policy, are admissible as prima facie evidence of the facts stated therein, against the assured. Mutual Life Ins. Co. v. Newton, 22 Wall. 32, 22 L. Ed. 793. If there was a variance between the allegations and the proof, the court's attention was not called thereto in an appropriate way, as is required by the rule (175 Ala. xxi, No. 34). Bickley v. Porter, 193 Ala. 607, 69 South. 565; Southern Railway Co. v. Jordan, 192 Ala. 528, 68 South. 418. Let the judgment of the circuit court be affirmed. Affirmed. falling down stairway from vestibule to office on ground floor was contributorily negligent, door and stepped forward without ascertaining where with building poorly lighted she opened if door opened into stairway. 4. NEGLIGENCE 125 STAIRWAY - DEFECTIVE LIGHTING-EVIDENCE-SIMILAR ACCIDENTS. Where the only theory on which plaintiff could recover damages for injuries sustained in falling down a stairway was that stairway was improperly lighted, evidence that others had that stairway was poorly lighted at the time fallen down same stairway, without showing such persons fell, is inadmissible, tending to show no negligence. Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. Action by Mrs. S. Hertz against the Advertiser Company. Judgment for defendant, and plaintiff appeals. Affirmed. The case made by the record is thus stated by counsel for appellant: sioned by a fall she received while upon the "Appellant sued appellee for damages occapremises of appellee by invitation; the fall be ing due to the alleged negligence of defendant in failure to use proper care and diligence to keep the building reasonably safe for plaintiff. The defendant pleaded not guilty and contributory negligence. "The evidence offered by plaintiff tended to prove that plaintiff had business to transact an express invitation over the phone) went to with defendant, and for that purpose (and after defendant's premises on the night of March 8, 1916. That she entered these premises from the Lawrence street entrance, through which the public was invited and accustomed to go. That upon leaving the public street she entered defendant's vestibule that was on grade or level with the street. A door from this vestibule open ANDERSON, C. J., and MAYFIELD and ed into the office. As the door was opened there SOMERVILLE, JJ., concur. was a flight of steps leading abruptly down into the office. It was dark in this place, and as plaintiff opened the door (the door opening to the inside of the office away from the vestibule and over the steps) she fell down the steps and received most serious injuries. This condition of the premises was to plaintiff unknown until after her fall. During the trial of the case plaintiff, after proving the condition of the premises to have been the same, undertook to prove by the witnesses Jones and Leak that they each fell at the place plaintiff fell, and about the same time plaintiff fell. The trial court refused to permit the introduction of this evidence to which plaintiff duly excepted. R. PP. 12-14. After the evidence was closed, at the request of defendant in writing the court gave 16 charges. To the giving of each plaintiff excepted. R. pp. 18-22, 25-27." Brief of appellee states the case as follows: "The complaint claims $25,000 damages for personal injuries received by plaintiff while on various terms that defendant was negligent in defendant's premises, the complaint alleging in respect to maintaining its premises in a reasonably safe condition, and that plaintiff while on said premises by invitation received personal injuries as a proximate consequence of issue and contributory negligence. such negligence. The defenses were the general "The advertiser company is a corporation engaged in the business of publishing a newspaper in the city of Montgomery; its place of business is on the southeast corner of Dexter avenue and Lawrence street. The building fronts on Dexter avenue and runs back about 110 feet on Lawrence street. There is a decided slope on Lawrence street, the rear of the build |