The Montgomery advertiser., 1906-06-03
Head-Notes ef the Decisions
 0f Alabama Supreme Court

REYNOLDS ct al. V. LAWRENCE. Bill to Enforce Vendors Lien and En-
 join Waste. Decided April 10,
 1s06.) GAO So Rep. 576)
 1. Headings; Bill; Amendment: De- parture from Original Cause.-- Where 6 bill was filed to enforce a. vendors lien. describing the land by half and quarter sections. and a copy of the deed was attached and made a part of the bill. describing the lands as describ-' ed in the bill. 1t was not a departure from the original bill to permit an amendment which sought to explain and make clear just how much and what lands were sought to be conveyed by the deed.
 2. Evidence; ParoI Evidence; Vary Ing Terms of Deed; Patent Ambiguity While 1t is a general rule that patent smbiguities in the face of dsed can not be made certain by parol testimony. yet, as the deed, and the intention Of the parties In making 1t, must pc de- termined by the court, the court Is en- titled to all the circumstances attend Ing the parties In making the deed to enable 1t to arrive at their intention; Especially when as in this case. the ambiguity is of the middle class, par taking of the nature of both latent ana patent ambiguities.
 B. Same; Description of Property.-- Where 8 deed conveying land descrip. cd at Mig and NE-1-4 of NW-l-4 or sec ae. parol evidence was admissi- ble to show that the parties intenaed to convey N-1-2 of NW-i-a and NE-l-4 Of NW-1-4 of Sec. 29.
 A. Deeds: Construction; Lands con- veyed Where the deed stated that tn" land conveyed contained l60 acres, and described 1t as S-1-2 and NE-l-f ot Nw-1-4 Sec. 2s, and an undivided nsn
 { AZ -T-A N. and S-1-2 of swift of NW-l-4 Sec. 2s, and the amendment alleges that IL should be described as S-1-2 of NW-1-s. NE-1-4 of Nw-1-4. Sec. 2S; S-i-2 or sW 1-4 of Nw-1-4, Sec. 23, and haif inter est in sw-i-4 of sw-i-4. Sec 2s. Held: that to harmonize the reeitais or the deed and make it speak the truth ln its svermeuts, that constructor .na. makes the description and the giVen nmnober of acre agret should be adoDt- ed
 5. waste:; Holder of Vendors hen Entitled to have 1t Restrained--A vep- der with a lien for purchase money may maintain a suit to stop waste upon tne land pending the payment Of the puf- chase money. .. statuta of Limitations The statute or ilmitations of ten years has no applica- tion as A defense to an action to en- 
 force vendors lien.
 T Vendors and Purchasers; Parties All subpurchasers of parts or tract of land are proper parties defsndant to 4 bill to enforce a vendors lien on ths whole tract.
 R. Appeal; Assignment of Error: sufsciency. An assignment of error ihat the court erred in everything semurrer to the bill and denied de- .endant's motion to strike parts or tne (iII is too general, and will not be con- 'Sidered.
 q Same; Discretion of Lower Court; Notion to Strike; Review Motion 70 trike certain parts Of the pleaa.nss addressed to the sound discretion W tha trial court, and its action thereon vilI not be reviewed on appeal
 Appeal from Cherokee Chancery srout. x,,.,.,a
 Afairmed. Opinion by Simpson. J.
 Weakiey, c. J., Tyson and Anderson U, concur.
 CITY OF GADsDEN ct al V. MITCH
 ELL. ct al.
 Bill for mandatory iniunction.-pec,de
 April 10, 1906.-(4o So. Rep. 557:l works franchise; contract.-The grant ing of a franchise by the city to con struct and operate water works sys- tenn, and the making or a contract py the city with such water works to fur nish water for public and private use within the oity. are within the incident al powers of the charter. and an ex- ercise of it's business or proprietary powers. and not a delegation of its gov ernmental functions.
 Waters; water companies; mu- nicipal franchise and contract; time {imit.-In the absence of time limit fixed by statute or the constitution. inc court cannot say. as matter of law. that thirty years Is an unreason- able length of time for which to grant d water works franchise. and to make a contract for furnishing water for public and private use.
 g. Municipal corporation; charter and incidental powers; water; discre. tion.-Within the charter or incidental powers of a municipal corporation, 1t