[Childers v. Shepherd.] Register in Chancery in and for said county, this day personally came J. C. Norwood, known to me to be the editor and manager of the Mountain Eagle, a newspaper published in Jasper, in said county, who being by me duly sworn, deposes and says, that the attached notice to authorize all incorporated towns and cities in Walker county to establish and operate a dispensary or dispensaries in such incorporated towns or cities, was published once a week for four consecutive weeks in said newspaper before the making of this affidavit." The criticism of counsel that this affidavit does not state the name of the newspaper, and the name of the county in which said paper was published, is without merit. The affidavit is headed, "State of Alabama, Walker County," and refers to the name of the paper in which it was published as the Mountain Eagle, published at Jasper in said county, of Walker, and it further states, that the notice was published for four consecutive weeks in said newspaper, referred to in the affidavit,-The Mountain Eagle, published at Jasper in said county. It thus appears, that the notice and proof of notice were sufficient; and, the bill, with such notice and proof, was duly passed by the House. After the passage of the bill in the House, that body caused it to be sent to the Senate, with the message that "The House has originated and passed the following bills and ordered the same sent to the Senate without engrossment." Among the number was the bill in question, its transmission being accompanied with the statement, "Said bill is accompanied by legal notice and proof and which notice and proof, appears in the House Journal as required by law." The original journal plainly shows that after proof by affidavit of the notice of the proposed law was exhibited to the House, where the measure originated, it was also exhibited to the Senate, along with the bill when it was transmitted without engrossment to the latter body. The bill as originally introduced into the House, passed the Senate on the 26th of February, 1903. The journal also shows that the notice and proof thereof were spread at length on the journal of the Senate. [Childers v. Shepherd.] It is said that the entries of this notice and proof consisted of a newspaper clipping of the bill in question, pasted on the journal together with a typewritten copy of the said affidavit of the publisher of the Mountain Eagle, also pasted thereon. That this was such a spreading of the notice and proof upon the journal, as complies with the law, was held in the case of Dudley v. Fitzpatrick, at the present term, in MS. It is again objected that this entry was made after the adjournment of the Legislature, by virtue of a general resolution of the two Houses authorizing and directing it to be done. The original journal of the Senate of the 60th and last day of the session, at the end of all its proceedings, including a spreading thereon of the notices and proofs of notices of local bills, including the one in question, shows a final adjournment of the Legislature, certified by its President, and attested by its Secretary, making it thus affirmatively appear, that the journal was completed before final adjournment. It is said, however, that the proof shows, that this, and some other notices and proofs of notice of local bills were, in fact, spread upon the journal after the Legislature adjourned. If it were competent to consider such proof. which 'we do not decide, yet, there does appear on the journal of the Senate, a joint resolution of the two Houses, adopted October, 3rd, 1903, on the last day of the session, which authorized the spreading upon the journal of each House, the proof by affidavit of the publication of all local bills passed by the Legislature at that session, which was sufficient for the purpose. The proposition that the act is in violation of section 22 of the Constitution in that it grants to towns and cities of Walker county, the exclusive privilege of selling intoxicating liquors, is wholly wanting in merit.-Shepherd v. Dowling, 127 Ala. 1; Hubbard v. Lancaster, Ib. 157; Ard v. Ozark, Ib. 671. It is again insisted that this act is unconstitutional, because by section 11 it authorizes the people of Walker county by their votes to repeal all existing laws on the [Childers v. Shepherd.] subject of intoxicating liquors, in conflict with the act. Section 11 referred to, provides that this act shall not repeal the dispensary act passed at the same session of the Legislature for precinct No. 5 of Walker county, until January, 1904, and not then, unless this act in the meantime has been ratified by a majority of the qualified voters of said county, voting at the election, authorized by sections 19 and 20 of the act. These sections provide for an election by the qualified voters, to determine if said dispensary law for the certain county should be ratified. If ratified, the Legislature simply provides for the repeal of the other dispensary law for precinct number 5 of the county, the repeal to go into effect on the 1st of January, 1904. There was no use in having two dispensary laws in the county. If the last was ratified, it gave. precinct number 5, all that was conferred on it by the special law for that particular precinct. The Legislature may pass a valid statute, to take effect on the hap pening of a future event, and the statute will not, on that account, be held to be unconstitutional.-Davis v. State, in MS; Hand v. Stapleton, 135 Ala. 162. A local law may be passed to take effect, on the ratification of the same by the people of a county or district thereof. Stanfield v. Board of Revenue, 89 Ala. 407; Edmondson v. Ledbetter, 114 Ala. 479. It appears that the judgment in this case was rendered by a court presided over by a de facto judge, at a time when the court could be legally held. There was no error in denying the writ of mandamus. Affirmed. MCCLELLAN, C. J., DowDELL and DENSON, J.J., concurring. [Marbury Lumber Company et al. v. Harriet Posey.] Marbury Lumber Company et al. v. Harriet Posey. Bill in Equity to have declared Void a Conveyance of Land and for Injunction. 1. Bill to redeem under a mortgage; when husband of complainant necessary party.-Where a bill is filed by a married woman, who claims title by a deed from her husband to have a deed to certain lands executed by her and her husband to a third party declared a mortgage and to have the same annulled on the ground of payment, or to be allowed to redeem, if the mortgage indebtedness is not paid, the husband of the complainant is a necessary and indispensible party to the suit, and the failure to make him a party is fatal to obtaining the relief prayed for; and of this defect the court can take notice ex mero motu. APPEAL from the Chancery Court of Autauga. The bill in this case was filed by the appellee, Harriet Posey, against the appellants. The bill was several times amended, and as finally amended averred that in the year 1870 Nathan Posey, the husband of complainant, entered the lands in controversy, as a homestead, under the United States Homestead Act; that after his entry, Nathan Posey, through threats of arrest and prosecution, was induced to execute a quitclaim deed to said lands, conveying his right, title and interest to one Kineon Wells; that this deed was executed on Oct. 8th, 1883; that there was never any consideration of any kind for said deed; that if there was any debt due by the said Nathan Posey to the said Wells, that the deed was intended as a mortgage to secure the repayment of said debt. and that since its execution Nathan Posey had paid said Wells every cent that he owed him, and that the complainant offered to pay what might [Marbury Lumber Company et al. v. Harriet Posey.] be found due; that on March 31st, 1885, the said Nathan Posey perfected his right to the lands in controversy, and received a patent thereto, and remained in possession of said lands undisturbed until Oct. 5th, 1892, when said Wells recovered said lands in an action of ejectment which was not defended by the complainant or her husband, Nathan Posey; that on December 14th, 1889, her husband, Nathan Posey, executed a deed conveying said lands to her, which deed recited as a consideration that the conveyance was made in payment of money belonging to the complainant, which said Nathan Posey had used for his individual benefit; that on March 3d, 1894, said Kineon Wells executed a deed conveying said lands to the Marbury Lumber Company, but that at such time the complainant was in possession of said lands, claiming them as her own, and that therefore the deed from Wells to the Marbury Lumber Co. was void; that after recovery of the judgment in the ejectment suit, the Marbury Lumber Co. had issued a writ of possession in order to take the property from the possession of complainant and deliver the possession thereof to the Marbury Lumber Co. As originally filed, Nathan Posey, the husband of the complainant, was made a party defendant, but subsequently the bill was amended by striking out Nathan Posey as a party to the suit, The prayer of the bill was that the Marbury Lumber Co., its agents, attorneys and employees, be restrained from executing the writ of possession, or from interfering in any manner with the complainant in the possession of said lands; that said deed or mortgage executed by Nathan Posey and the complainant to said Kineon Wells be declared null and void, and that the conveyance executed from Wells to the Marbury Lumber Co. be delivered up and cancelled; and in that alterna tive, that in the event such conveyance from complainant and her husband to Wells be declared to be a mortgage, that it be ascertained how much, if anything, was due thereon, and that complainant be permitted to pay whatever might be due, and that the same be thereby satisfied and cancelled. |