[Davis v. City Council of Montgomery.] on Pleadings, chap. 1, ad finem. The major proposition is the law of the case; the middle proposition is the facts; and the conclusion is the judgment of the court, applying the law of the case to the facts. If the major or the middle proposition is untrue, then the case must fail. The major proposition is tried upon demurrer by the court, or upon a charge to the jury, which is of like character. The charge is an impeachment before the judge presiding at the trial, of the truth of the major proposition. The decision on demurrer does not need a bill of exceptions to bring it up on appeal for review and correction, if it should be wrong; it is a part of the record. The decision on the charge does. Rev. Code, § 2754. Yet the purpose and object of both are the same. Here, if I understand the complaint, which is not wholly free from some embarrassing prolixity, the major proposition is this: The city corporation of the city of Montgomery is liable for all damages occasioned by nuisances erected in said city, after notice of the same, if the corporate authorities or city government fail to abate it before the injury accrues. This is not the law, as declared in the charter, nor is it the law as deduced from principle; and it is only in one of these ways that the city can be made liable. The abatement of a nuisance is a judicial act. For a failure to exert its judicial power, the city is not liable, unless, possibly, it acts not only negligently, but also corruptly. This principle is referred to and admitted by the learned chief justice of this court in the case of Smoot v. The Mayor, &c. of Wetumpka, supra. His words are these: "The principal difficulty we have had in this case, is in determining as to the nature of the liability of the defendant (city of Wetumpka) in respect to the failure of duty and negligence charged against it, considered with the law of its organization; in other words, whether the duty alleged to have been negligently and tortiously violated grows out of, and forms a part of those powers, in the exercise of which the corporation acts as a legislative body, or whether such duty does not involve the exercise of governmental functions." The judicial power is a part of the governmental power. Const. Ala. Art. III. §§ 1, 2. In the exercise of such powers, the corporation is not bound to act, unless it chooses to act, if this choice is not corruptly made. 24 Ala. 120, 121, 112. This principle has been acknowledged and acted upon in all or most all of the highest courts of the States of the Union, in which such questions as that involved in the present case have been discussed and determined. troit v. Blakely, 21 Mich. 84; S. C. 4 Amer. R. 450 ; Jewett v. The City of New Haven, 38 Conn. 368; S. C. 9 Amer. R. 382; Torbush v. City of Norwich, 38 Conn. 225; S. C. 9 Amer. R. 395, and cases cited in appellee's brief. De [Blum v. Jones.] The nuisance charged in the plaintiff's complaint would be, at common law, a private nuisance, remediable by suit in the plaintiff's name against the person erecting or continuing the nuisance. 7 Bac. Abr. Bouv. ed. pp. 223, 233; 1 Russ. on Crimes, pp. 317 et seq. But, by ordinance of the city government, it is made a public, or common nuisance, and it is remediable by indictment (1 Russ. on Crimes, 329); or, by action on the case after the injury (Duncan v. Thwaite, 3 B. & C. 584; 11 East, 60); or, before the injury, by bill in equity for injunction (2 Story's Eq. §§ 921, 924, 925, 926); but in no case by suit against the city corporation for a failure to abate the nuisance, unless, perhaps, it appeared that the corporation had acted corruptly and abused its powers, or this was required by the stipulations of the charter. The judgment of the court below is affirmed. Blum v. Jones. Action for Money Had and Received. When landlord cannot maintain action against purchaser of crop from tenant. The landlord cannot maintain an action for money had and received, against one who, with knowledge of his statutory lien on the tenant's crop (Rev. Code, §§ 2961-63), and of the non-payment of the rent, purchases the crop from the tenant, and sells it. APPEAL from the City Court of Montgomery. Tried before the Hon. JOHN D. CUNNINGHAM. This action was brought by Mrs. Frances A. Jones against Edward Blum. The original complaint contained a special count, which was struck out by amendment, and the common count for money had and received; and the cause was tried on issue joined on the plea of the general issue. The plaintiff sought to recover from the defendant money arising from the sale of cotton, which he had received from one Hereford, who was the plaintiff's tenant, and had sold before the commencement of the suit. The court charged the jury, at the request of the plaintiff, that if the defendant bought the cotton from Hereford, "with knowledge that the rent agreed to be paid was unpaid, and had sold said cotton when this suit was commenced, the plaintiff was entitled to recover the amount of rent that was unpaid, provided the cotton sold for enough to pay it; and, if not, then the sum for which said cotton was sold." This charge, to which the defendant excepted, is now assigned as error, together with other rulings which require no particular notice. [Blum v. Jones.] SAYRE & GRAVES, for the appellant, cited and relied on Dulany v. Dickinson, 12 Ala. 603; Thompson v. Spinks, 12 Ala. 155; Governor v. Davis, 20 Ala. 369; Dawes v. Rogers, 15 Mass. 397. BLAKEY & FERGUSON, contra. - The case of Thompson v. Merriman (15 Ala. 166) in effect overrules Dulany v. Dickinson (12 Ala. 603), and decides that, if the property remains in specie, an action on the case is the proper remedy; but, if it has been converted into money, an action for money had and received may be maintained. This is a liberal action, and lies whenever the defendant has money which, ex æquo et bono, belongs to the plaintiff. Br. Bank v. Parish, 20 Ala. 433; Wilson v. Sargeant, 12 Ala. 778; Stewart v. Conner, 9 Ala. 803; Cameron v. Clarke, 11 Ala. 259; Strickland v. Burns, 14 Ala. 511; Hill v. Kennedy, 32 Ala. No privity_of contract is necessary to the maintenance of the action. Thompson v. Merriman, 15 Ala. 166; Huckabee v. May, 14 Ala. 263. The fair construction of the statute is, that the landlord's lien may be enforced against the tenant, or against any one holding the crop in his right, or against a purchaser from him with notice of the lien. A lien may be created by law, or by express contract between the parties. 2 East, 235; 2 Bouvier's Law Dic. 46. It attaches to the property, clings to it, and follows it into the hands of any person who has notice of the lien. The right does not depend on the remedy by attachment, which is merely cumulative. B. F. SAFFOLD, J. — The complaint, amended by striking out the first count, shows a suit in assumpsit for money had and received, brought by the appellee against the appellant. The ground of the action is, that the defendant purchased cotton from the plaintiff's tenant, with knowledge of her lien as landlord, and appropriated it to his own use, when there had been no payment or no satisfaction of her rent. The court charged the jury that, under the facts thus stated, if the defendant knew the rent had not been paid, and had sold the cotton when the suit was instituted, the plaintiff was entitled to recover the amount of rent unpaid, or the price for which the cotton sold, if less than the rent due. This charge is in conflict with the decision of Dulany v. Dickinson, 12 Ala. 601. The court there said, that Thompson v. Spinks (12 Ala. 155) was a decisive authority against the maintenance of the action; that the landlord's lien was not such a right of possession or property as would support trespass, and, consequently, a waiver of the tort, and recovery as upon contract; that as no tort was committed on the plaintiff, [Hardigree v. Mitchum.] and no contract, express or implied, to pay the rent could be raised against the purchaser from the tenant, assumpsit could not be maintained to recover the value of the rent. Thompson v. Merriman (15 Ala. 166) is not contradictory of this, because the law required the sheriff to pay the landlord as much as one year's rent, as the condition upon which he might take the goods. This requisition is the very essence of the implied promise. The statute, in giving the lien, prescribes the manner of its enforcement, to wit, attachment to be levied on the crop in the possession of the tenant, or any one holding it in his right, or in the possession of a purchaser from him with notice of the lien of the landlord. R. C. §§ 2961, 2963; Hunter v. Morrison, at June term, 1873. The quere in Dulany v. Dickinson, supra, may have been suggested by a thought of the purchaser from the tenant disposing of the property before the attachment could be levied, with a view to defeat the landlord. If a case of disregard of the landlord's rights, and fraudulent contrivance to prevent their enforcement, were shown, I think an action on the case would lie. But to hold that the landlord's lien was such as a mortgage or execution would give, or as the vendor's lien upon land is, would too seriously embarrass the sale of agricultural products, which are produced chiefly for sale and consumption, and are generally perishable in their character, and difficult of identification. The judgment is reversed, and the cause remanded. Hardigree v. Mitchum. Bill in Equity to enforce Vendor's Lien for Purchase-money of Land. 1. Removal of incumbrances by purchaser; compensation. A purchaser of real estate, holding his vendor's warranty against incumbrances, has the legal right to remove them, and is entitled to a deduction from the unpaid purchase-money of whatever sum he has reasonably expended for that purpose; but, when he seeks such deduction, or compensation for the removal of an incumbrance, he must show that it was an actual, subsisting incumbrance, capable of enforcement, or that his vendor is estopped from denying its validity. 2. Mistake or ignorance of law. -The common-law rule which refuses relief against ignorance or mistake of law, and which is equally applicable in courts of law and equity, is not rigidly enforced where such ignorance or mistake is induced by fraud, or imposition, or undue influence, or an abuse of confidence springing out of the peculiar relations existing between the parties. 3. Retroactive effect of judicial decisions. — A decision of this court, overruling former decisions, which had been acquiesced in and acted on by the community generally for several years, will not be allowed a retrospective operation, so as to overturn acts done and contracts executed in good faith and reliance on those decisions. 51 151 97 482 [Hardigree v. Mitchum.] 4. Estoppel against vendor, in matter of incumbrance, removed by purchaser. — When a vendor has received from his vendor indemnity against a supposed incumbrance, and retains it, and promises his vendee to remove the incumbrance, but fails to do so, he is estopped from denying its validity, as against his vendee, who has removed it. APPEAL from the Chancery Court of Talladega. Heard before the Hon. B. B. MCCRAW. The bill in this case was filed on the 24th December, 1870, by N. J. Mitchum, against John C. Hardigree, and sought to enforce a vendor's lien for the unpaid purchase-money of a tract of land, which was sold by the complainant to the deendant in October, 1867. No deed was executed at the time f the sale, but complainant gave his bond for titles, and the defendant executed his two notes for the purchase-money, each for $250. These notes were unpaid, and were made exhibits to the bill; and the bill alleged that they were given for the full amount of the purchase-money. The defendant alleged in his answer, that the price of the land, as agreed between the parties, was $875, of which $375 was paid in cash; and that he had paid the further sum of $325 for the land, under a purchase at sheriff's sale in January, 1868, under an execution issued on a judgment against one Daniel Carmichael, from whom the complainant had bought the land in 1864. This judgment was rendered in 1860, and executions on it were regularly kept up until 1862. The defendant insisted in his answer, that the existence of this judgment was well known to the complainant at the time when the contract between them was made, but was not known to him, and was concealed from him by the complainant; and he filed a cross-bill, asking a rescission of the contract on account of this fraud, or an abatement of the purchase-money, pro tanto, on account of the money paid by him under this judgment. On final hearing, the chancellor dismissed the cross-bill, and rendered a decree for the complainant; and his decree is now assigned as error. JOHN HENDERSON and R. D. RUGELY, for appellant. S. K. MCSPADDEN, contra. BRICKELL, J.-The bill was filed by the appellee, to enforce a lien for the unpaid purchase-money of a tract of land sold by him to the appellant in 1867. The lands were purchased by the appellee in 1864, from one Carmichael. When this purchase was made, there was a subsisting judgment against said Carmichael in the circuit court of Talladega, in which county the lands were situated, rendered in 1860. When the sale to the appellant was made, the appellee had knowledge of this judgment against Carmichael, and knew that it was as |