is on the appellant to show probable preju- Appeal from Circuit Court, Montgomery dice, failing which a reversal of the judgment County; Gaston Gunter, Judge. is forbidden by practice rule 45 (61 South. ix), as construed by this court in Henderson v. T. C. I. & R. R. Co., 190 Ala. 126, 67 South. 414, and other recent cases. [3, 4] The record does not show that the trial court required defendant to answer the second set of statutory interrogatories filed by plaintiff, and we are therefore not called upon to determine whether such a requirement would have been proper or not. It ap pears from the minute entry that defendant was only required to further answer the fourth interrogatory propounded by plaintiff, which was clearly within the discretionary power of the court. No prejudicial error appearing from the record, the judgment must be affirmed. Affirmed. ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur. (201 Ala. 447) MONTGOMERY BANK & TRUST CO. v. STATE. (3 Div. 305.) (Supreme Court of Alabama. May 16, 1918.) 1. BANKS AND BANKING 317-TRUST COMPANIES-ANNULMENT OF CHARTER. Under Acts 1911, p. 88, § 49, authorizing the superintendent of banks to sue to annul and vacate the charter of any bank or for liquidation, and Code 1907, § 3528, making trust companies amenable to the general banking laws, so far as applicable to trust companies, the superintendent of banks has the exclusive authority to proceed against trust companies, whether or not they are doing or are authorized to do a banking business in connection therewith. 2. BANKS AND BANKING 316-TRUST COM PANIES-DISSOLUTION-STATUTE. Under Code 1907, § 3512, making corporations subject to dissolution on the ground of the suspension of business by reason of lack of funds to carry on the business, the state superintendent of banks may proceed in chancery for the liquidation of a trust company, whose charter authority and franchise survive, notwithstanding its abandonment of its banking business, where it has disqualified itself from the lawful pursuit of its trust business by the reduction of its nominal capital stock below the minimum requirement prescribed by section 3529. 3. BANKS AND BANKING 317-TRUST COM PANIES-RECEIVERSHIP. Under Code 1907, § 3512, though the evidence did not show that remaining assets of the trust company were in danger of further waste, dissipation, or depletion, yet where its corporate dissolution seemed to be forecast with reasonable certainty unless its debts were provided for, and sufficient funds provided for its safe and lawful resumption of business, a provisional receivership is contemplated and authorized. 4. APPEAL AND ERROR 714(6) — REVIEW MATTERS ARISING AFTER SUBMISSION. On appeal by a trust company from an order appointing a receiver at the instance of the state superintendent of banks, a certificate showing that since the submission of the cause the company has amended its charter, so as to divest itself of all authority to carry on a banking or a trust business, could not be considered. Bill in equity by the State of Alabama, by and through the State Superintendent of Banks, against the Montgomery Bank & Trust Company, a domestic corporation, doing business in the city of Montgomery, Ala., to procure dissolution, and praying for the appointment of a receiver to take charge of its assets, collect its debts, pay its creditors, and make distribution among the stockholders of the remaining funds. From a decree appointing a receiver, respondent bank apAffirmed. peals. On application of complainant, of which notice was given to respondent, receivers were appointed. The hearing was had on the verified bill, and the affidavits of complainant, including official reports, showing the condition of banks at various times since 1912, on the answer of respondent, with demurrers incorporated, and the affidavits for respondent and motion to strike various portions of the affidavits of Walker, state superintendent. Ball & Beckwith, of Montgomery, for appellant. Stuart Mackenzie and W. A. Gunter, both of Montgomery, for the State. SOMERVILLE, J. The bill of complaint shows, and it so appears from the evidence, that the respondent corporation was organized under the laws of Alabama in 1906, with a capital stock of $250,000, and was authorized by its articles of incorporation to do a general banking business, with all the powers incident thereto, and also to exercise all the rights, privileges, and franchises conferred upon trust companies by the laws of Alabama; that in January, 1912, its capital stock was reduced to $150,000; that in April, 1913, its entire banking business was transferred to and taken over by the Exchange National Bank, since which time respondent has not engaged in the business of banking, but its sole business has been that of a trust company; that in February, 1917, upon notice from complainant Walker, as superintendent of banks, that its capital stock had been found to be impaired to the extent of about $87,500, respondent reduced its capital stock to $50,000. The bill also alleges that, since April, 1913, "its expenses have been largely in excess of its receipts, and its assets are being further dissipated, wasted, and reduced by reason of expenses and fixed charges incident to maintaining its corporate existence; that in order to preserve the remaining assets of said company, and to prevent the further dissipation and depletion thereof, it is necessary that this court appoint a receiver thereof." The theory of the bill is: (1) That the respondent corporation, as a bank, is subject to dissolution and liquidation under section tion, or depletion under present management, and that the conditions justifying a receivership in ordinary cases are not here apparent, yet the statute (Code, § 3512) authorizes the 3512 of the Code, because it has suspended sets are in danger of further waste, dissipaand abandoned its banking business, which it cannot in future resume, by reason of the lack of funds to carry it on; and (2) that, as a trust company, it is subject to dissolution and liquidation because it has disquali- appointment of a receiver by the chancery fied itself from doing business in Montgomery, by reducing its capital stock below the minimum of $100,000 prescribed by the Code (section 3529), and cannot in any reasonable time resume its business with the required capital stock. [1] It is clear that, under the Alabama Banking Act of 1911, the state superintendent of banks is the only proper party plaintiff in any proceeding to vacate and annul the charter of a bank, or for liquidation with a receivership. Acts 1911, p. 88, § 49; McDavid et al. v. Bank of Bay Minette, 193 Ala. 341, 69 South. 454. And, since trust companies are made "amenable to the general banking laws of the state in so far as said laws are applicable to trust companies" (Code, § 3528), it is clear that the superintendent of banks has the same exclusive authority in proceedings against trust companies, whether or not they are doing or authorized to do a banking business in connection therewith. It is clear, also, that, but for defendant's trust company powers and business, it would be subject, under the undisputed facts, to a receivership and final liquidation as a banking corporation. [2] The difficulty here grows out of the survival of its charter authority and functions as a trust company, notwithstanding its abandonment of its banking business and its disqualification for further engaging therein. In this aspect of the case, the question obviously is whether, as against the trust company, this proceeding may be brought in chancery for liquidation, not because of respondent's insolvency or lack of funds in the ordinary sense, but because it has disqualified itself for the lawful pursuit of its trust business by the reduction of its nominal capital stock below the minimum of statutory requirement. As we view the situation, we think that respondent's reduction of its capital stock from $150,000 to $50,000 must be taken as conclusive evidence that respondent has not the financial means necessary to carry on its business of a trust company in Montgomery in a lawful manner, viz., with an unimpaired capital stock of $100,000, and hence that respondent has suspended its trust business for lack of funds necessary to carry it on. The result is that respondent, though regarded solely as a trust company, is subject to dissolution at the suit of complainant under section 3512 of the Code. court in the case of banks and trust companies in the financial condition of this respondent, pending the final settlement of their affairs, and such action is manifestly discretionary, and will be revised only in case of a clear abuse. Here, upon the showings made, the corporate dissolution of respondent seems to be forecast with reasonable certainty, unless, before final action is taken, its debts have been provided for, and sufficient funds provided for its safe and lawful resumption of business (Code, § 3512), and a provisional receivership is clearly contemplated and authorized by the statute. [4] A certificate has been filed in this court showing that since the submission of this cause the respondent corporation has duly amended its charter, so as to divest itself of all authority to carry on either a banking or a trust business. We cannot, on this appeal, take cognizance of this suggestion; but, if properly brought to the attention of the trial court, it may possibly have some weight in determining the final action of the court. Let the decree of the circuit court be affirmed. Affirmed. All the Justices concur. In ejectment, where plaintiff introduced mortgage and foreclosure deed, and the bill of exceptions failed to set them out, or state their stipulations and recitals, the court could not determine whether defendant's objections to their admission were well taken. 2. APPEAL AND ERROR 671(3) SCOPE RECORD. Where purchaser at foreclosure brought the mortgage debt before foreclosure, the court ejectment, and defendant relied on payment of on appeal could not pronounce erroneous a judgment for plaintiff, where the record failed to show date of foreclosure, and the bill of exceptions did not contain all of the evidence. 3. APPEAL AND ERROR 1051(1)—HARMLESS ERROR. Erroneously permitting party to testify to agreement with other party's deceased husband was harmless, where same testimony had previously gone in without objection. Appeal from Circuit Court, Montgomery County; Leon McCord, Judge. [3] This appeal is only from the order appointing receivers, and while we may con- Ejectment by W. M. Shoemaker against cede, as urged by respondent, that the evi- Lucy Baker. Judgment for plaintiff, and de dence does not show that its remaining as-fendant appeals. Affirmed. W. R. Brassell and Brassell & Brassell, all of Montgomery, for appellant. Ball & Beckwith, of Montgomery, for appellee. SOMERVILLE, J. Plaintiff sues defendant in statutory ejectment and the court, sitting without a jury, rendered a judgment for plaintiff. [1] After showing that one Daniel Baker, defendant's husband, was the owner of the lot sued for, plaintiff introduced in evidence a mortgage to himself on this lot from said Baker, and also a foreclosure deed under the mortgage. These conveyances are not set out in the bill of exceptions, nor is there any showing as to their stipulations and recitals, except that the mortgage note was for $225. Whether defendant's objections to their introduction in evidence were well taken it is impossible to determine. [2] The defense seems to have been that the mortgage debt was paid before the fore closure by plaintiff's reception of rents collected from the mortgaged property. But not only is the date of the foreclosure not shown, but the bill of exceptions does not purport to contain all the evidence adduced on the trial. We cannot, therefore, pronounce the judgment erroneous. [3] The trial judge erroneously allowed plaintiff to testify to an agreement he had made with Daniel Baker, now deceased, authorizing him to apply the rents from the mortgaged place to Baker's general account. But the same testimony was given several times previously without objection from defendant, and the fact would have remained in evidence regardless of the rulings complained of. But, in any view of the case, the condition of the bill of exceptions does not enable us to discover error in the judgment. Affirmed. one claimant entitled to share with plaintiffs was not a party. 4. EJECTMENT 109-EVIDENCE-GENERAL AFFIRMATIVE CHARGE. Where evidence in ejectment does not clearly show what part of a lot was included in the description in the complaint or was held by defendants, general affirmative charge for plaintiffs was error. 5. LIFE ESTATES 8-ADVERSE POSSESSIONLIFE TENANT'S POSSESSION. Where beneficiary of life trust in land took possession, under the deed, such possession inured, conclusively by way of estoppel, to the remaindermen, notwithstanding the deed was color of title only. 6. LIFE ESTATES 28-ADVERSE POSSESSION -GENERAL AFFIRMATIVE CHARGE. possession with that of the life beneficiary of Evidence, in ejectment, connecting grantor's his trust deed, held not to warrant general affirmative charge for plaintiff remaindermen. 7. EJECTMENT 25(2)-DEFENSE-OUTSTANDING TITLE IN THIRD PERSON. sion peaceably in good faith under color of title If defendant in ejectment acquired possesfrom a grantor then in possession, she could offer evidence of an outstanding title in a third person, with which she did not connect herself, session. unless plaintiffs established title by adverse pos8. EJECTMENT 9(3)-STRENGTH OF TITLE. In the absence of estoppel, plaintiffs in ejectment must recover on the strength of their own title and not the weakness of defendant's title. 9. ADVERSE POSSESSION 85(1) — PRESUMP TION-HOSTILE CHARACTER. The presumptions attending possession favor idea of subserviency to the true title until title by adverse possession is complete. 10. PROPERTY 12 MODE OF TRANSFER. will not divest his title; only estoppel, adverse possession, conveyance, or processes of government can do so. Mere inaction or indifference of fee owner Appeal from Circuit Court, Lee County; Lum Duke, Judge. Ejectment by John P. Reynolds and others against Sarah Trawick and others. From order setting aside judgment on directed verdict for plaintiffs, and granting new ANDERSON, C. J., and MAYFIELD and trial, plaintiffs appeal. Affirmed. THOMAS, JJ., concur. (201 Ala. 449) REYNOLDS et al. v. TRAWICK et al. (Supreme Court of Alabama. May 9, 1918.) 1. EJECTMENT 109-DIRECTION OF VERDICT -RIGHT TO RECOVER. In ejectment by several plaintiffs who claimed as children of life tenant, and as remaindermen, when there was evidence that one of them was not the life tenant's child, it was error to give general affirmative charge, since all the plaintiffs in ejectment must recover. 2. NEW TRIAL 38-GROUNDS-SUBMISSION OF CASE TO JURY. Error in invading jury's province by general affirmative charge contrary to evidence is ground for new trial. 3. APPEAL AND ERROR 1067-HARMLESS ERROR-INSTRUCTIONS. See, also, 197 Ala. 165, 72 South. 378. Lane & Lane, of Greenville, and E. H. Glenn, of Opelika, for appellants. Barnes & Walker, T. D. Samford, and N. D. Denson & Sons, all of Opelika, for appellees. MCCLELLAN, J. Statutory ejectment, instituted October 17, 1911, by appellants (John P. Reynolds, H. H. Reynolds, Alice Morris, and Ella Christopher) against the appellee Mrs. Trawick and her tenants, who disclaimed. The property in question is a lot (about two acres) in Opelika. The court gave the general affirmative charge for all of the plaintiffs. In response to motion for new trial, the verdict and judgment were set aside and a new trial awarded. From this action of the court the plaintiffs (appellants) appeal. If plaintiffs in ejectment are otherwise entiThe material uncontroverted facts disclostled to general affirmative charge, no reversible error can be predicated on failure to restrict re-ed by the record, with special regard to covery to plaintiffs' proportionate shares, when chronological order, are those now to be stat ed. On February 14, 1844, a patent was issued description in the complaint or was within by the United States to Abijah B. Bennett the area held by the Trawicks. The general conveying the half section of which the lot | affirmative charge erroneously took this inin suit was a part. On January 19, 1863, quiry from the jury. The action of the court W. T. Black and wife made conveyance of a in awarding the new trial was also justified lot in Opelika (which plaintiffs claim was by this error. the lot in controversy) to Thomas Haws, [5] The plaintiffs insisted that W. T. Black trustee for Harriet Reynolds, the wife of went into possession of the premises deJohn Reynolds, during her life and remain-scribed in the complaint in 1860; that Harder to "the lawful heirs of her body." The riet Reynolds and John Reynolds, her husplaintiffs are children of Harriet Reynolds, band, and their family moved on the place who died in 1910. Harriet Reynolds lived in January, 1863, as the Blacks moved out; on the lot for several years, moving away in that the Reynolds family resided on the lot 1871 or 1872. On November 17, 1893, W. until 1871 or 1872. After their removal in W. Williams and wife executed to C. A. Tra- 1871 or 1872 there is no evidence of any wick a deed to the lot described in the com- possession until November 17, 1893, when plaint. Williams was shown to have been in Williams, then in possession, made the deed possession of the lot when he executed the under which the Trawicks have ever since deed to Trawick. The Trawicks moved on held possession. The possession of Harriet the premises, and the grantee and his succes- Reynolds, the life tenant, taken under the sors in right have been ever since (1893) in Black deed, inured, conclusively by way of possession thereof. The plaintiffs claim, in estoppel, to the benefit of those in whom that virtue of Black's deed, as remaindermen; deed undertook to invest the remainder, and their mother, the life tenant, having died in so notwithstanding the deed from Black op1910. The evidence is entirely silent with erated as color of title only. Hanson v. reference to any actual possession of the Johnson, 62 Md. 25, 50 Am. Rep. 199; a deland described in the patent to A. B. Bennett. cision cited on another, though related, It is entirely silent with reference to any point in L. & N. R. R. Co. v. Philyaw, 88 actual possession of the lot described in the Ala. page 268, 6 South. 837. See Brittain v. complaint between the time (1871 or 1872) | Daniels, 94 N. C. 781. the Reynolds moved away and the time (November, 1893) Williams executed the deed to Trawick. [1, 2] Since all the plaintiffs in an action of ejectment must recover, the court erred in giving the general affirmative charge for the plaintiffs when this state of the evidence is considered: Mrs. Christopher, one of the plaintiffs, testified she was a daughter of Harriet Reynolds, whereas, according to Mrs. Morris' testimony, Mrs. Christopher was not among the children of Harriet Reynolds. The general charge thus given invaded the jury's province in concluding in favor of the plaintiffs, notwithstanding there was conflict in the evidence with respect to the heirship of one of the plaintiffs, namely, Mrs. Christopher. For this reason the court was justified in granting the motion for new trial. [3] Daniel Reynolds was a child of Harriet Reynolds. He is not one of the plaintiffs. If the plaintiffs had been otherwise entitled to the affirmative charge, no reversible error could be predicated of the failure of the charge to restrict the measure of the recovery to the proportionate interest or interests of the plaintiffs. Cochran v. Kimbrough, 157 Ala. 454, 47 South. 709; Swift v. Williams, 162 Ala. 147, 150, 50 South. 123. [4] If the description in the deed from Black to Haws is read in the light of the testimony of W. W. Barnes, a surveyor, even without the drawing or plat with reference to which he appears to have illustrated his testimony before the jury, it was a matter of serious doubt what part, how much, of the lot described in the deed was within the [6] There was evidence to the effect that Black was in possession of the lot in 1860; but the testimony of the witness Lawler, which has been carefully noted in the light of the comment thereon in the brief for appellants, raised an issue of fact whether Black occupied, was in possession of, the lot before the date of the execution of the deed to Haws, trustee, and, if so, whether the period of Black's possession constituted ten years when added to the period during which Harriet Reynolds was in possession, up to 1871 or 1872. The testimony of this witness cannot be interpreted as being consistent only with the other evidence tending to show that Black was in possession in 1860, or any other particular date ten years or more before the removal of Harriet Reynolds from the place in 1871 or 1872. Hence the giving of the general affirmative charge was not justified by undisputed evidence of title by adverse possession for the ten years preceding the removal of Mrs. Reynolds from the premises in 1871 or 1872. [7, 8] According to the present record, neither the plaintiffs nor the defendant connected themselves with any grantor who had title to the lot. If through the continuous possessions of Black and Mrs. Reynolds title by adverse possession, for the requisite period, did not vest in Mrs. Reynolds (the ostensible life tenant, who died in 1910) and the remaindermen, the defendant, who claims and took possession under ance from Williams, a grantor in possession at the time (November 17, 1893), was entitled to offer evidence of an outstanding title in a the convey conspired with the grantors to perpetrate the 2. FRAUDULENT CONVEYANCES 255(2) Grantor's wife and husband of grantee in an alleged fraudulent conveyance, if not necessary, were proper, parties in suit to set aside the conveyance, where bill alleged that the wife joined in the conveyance, and the husband joined in a mortgage by the grantee to other persons, with intent to perpetrate the fraud. Appeal from Circuit Court, Houston County; H. A. Pearce, Judge. Bill by the Moore-Handley Hardware Company and others against W. T. Middlebrooks and others. From a decree overruling demurrers to the bill as amended, defendants appeal. Affirmed. third person with which defendant did not, and that grantee knew of, participated in, and connect herself. Owen v. Moxon, 167 Ala. 615, 621, 52 South. 527; McCreary v. Jackson Lumber Co., 148 Ala. 247, 251, 41 South. 822; Guilmartin v. Wood, 76 Ala. 204, 211. In the absence of an estoppel, not shown by this record, the plaintiffs must recover, if at all, upon the strength of their title, not upon the weakness of the defendant's right or title. [9, 10] Neither the defendant nor her predecessors in right or title were bare trespassers. They went into possession under color of title at least. The defendant undertook to show an outstanding title in others than the plaintiffs-a title with which the plaintiffs were not shown to be in any wise connected-by introducing the mentioned patent from the United States to A. B. Bennett, issued in 1844. Unless the presumption is indulged that the plaintiffs or their predecessor (Black) succeeded to the unquestioned title passing to Bennett from the United States, or that the Bennett title had become extinct by the lapse of time, the plaintiffs could not recover without showing an efficient adverse possession of ten years prior to the removal of the Reynolds family from the place. A presumption of this character was indulged in Bennett v. Horr, 47 Mich. 221, 10 N. W. 347, and in Parkersburg Industrial Co. v. Schultz, 43 W. Va. 475, 27 S. E. This court, as Guilmartin v. Wood, supra, illustrates, has held to the view that the presumptions attending possession even favored the idea of subserviency to the true title until adverse possession had effected to This invest title in the adverse possessor. presumption, firmly established in this jurisdiction, contradicts that indulged in the Michigan and West Virginia cases, noted above. In this state entire inaction or indifference on the part of the owner of the fee will not divest his title. Only through estoppel, adverse possession, or conveyance (will, deed, or mortgage), aside from the processes of government, can an unqualified title in fee, once vested, be divested. cannot accept the cited cases as expressing sound law in this jurisdiction. 255. Bill by appellees, as creditors of W. T. Middlebrooks against the said W. T. Middlebrooks and his wife, E. D. Middlebrooks, and L. M. Middlebrooks, the daughter of the debtor, and her husband, H. E. Middlebrooks, the Houston National Bank, and the Dothan National Bank, seeking to have certain conveyances made by the debtor declared void as against the creditors. Upon submission of the cause for decree upon demurrers filed by respondents to the original bill, the demurrers of the respondents Middlebrooks were sustained, and those of the two respondent banks overruled, from which decree an appeal was prosecuted to this court, resulting in an affirmance of the decree of the chancellor in overruling the demurrers to the Houston National Bank and the Dothan National Bank. See Dothan National Bank v. MooreHandley Hdw. Co., 76 South. 317. Paragraph 8 of the original bill had to deal with a deed alleged to have been executed by W. T. Middlebrooks and his wife, E. D. Middlebrooks, to L. M. Middlebrooks, the daughter of W. T. Middlebrooks, with the intent to hinder, delay, and defraud the creditors of said W. T. Middlebrooks; said deed We purporting to bear date of May 8, 1912, and recorded on April 7, 1914. A sufficient statement of the case appears in the opinion on The court did not err in granting the mo- former appeal. Subsequent to the decree on tion for a new trial. Creditors' bill, alleging that debtor and wife made voluntary conveyance to daughter with intent to defraud existing and future creditors, demurrers, complainant amended paragraph 8 of the original bill so as to add thereto the following: "Eighth. And complainant avers that the said respondent W. T. Middlebrooks, together with his wife, E. D. Middlebrooks, with the intent and for the purpose of hindering, delaying, and defrauding the existing and subsequent creditors of the said W. T. Middlebrooks, and to put the property of said W. T. Middlebrooks beyond the reach of his existing and subsequent creditors, did execute a deed to L. M. Middlebrooks, purporting to be dated on the 8th day of May, 1912, which deed was withheld from record until the 7th day of April, 1914, for a pretended consideration of $1 and other good and valuable consideration, the real property described in subdivision A of the original bill of complaint, and a copy of said deed is hereto attached and marked 'Exhibit B,' and made a |