[Williams v. Brassell.] property in the said chattels, and to deprive him of the benefit and advantage thereof, whilst the said plaintiff was the owner and proprietor of the said chattels, and whilst the same were so let to, and in the possession of the said Freeny as aforesaid, to wit, on the 15th day of August, 1871, wrongfully and unjustly seized and took the said chattels from and out of the possession of the said Freeny, and converted and absolutely sold and disposed of the same to his own use; and thereby the said plaintiff hath been, and is, greatly injured, prejudiced, and aggrieved in his reversionary interest and estate of and in the said chattels." The defendant pleaded not guilty, and also two special pleas, which were as follows: "2. For further answer to the complaint, defendant says that, after the seizure of the said mules as therein alleged, and before the commencement of this suit, and before the termination of the possessory interest of the said Freeny, under the hiring therein stated, plaintiff became again possessed of the said mules, and ever since has remained in the possession thereof, undisturbed by this defendant; and this he is ready to verify. 3. For further answer," &c., "defendant says, that said plaintiff, well knowing all the facts averred in said complaint, bid for said mules, and became the purchaser thereof, at the sale made by defendant as alleged in said complaint, and paid the purchase-money, and accepted the delivery of said mules; and this he is ready to verify." The court sustained a demurrer to each of these pleas, and its judgment on the demurrers is now assigned as error. FITZPATRICK & WILLIAMSON, for appellant. ARRINGTON & GRAHAM, contra. BRICKELL, J.-This action is in the nature of a special action on the case at common law, by a reversioner of personal property, for an injury to the reversion, pending the continuance of the particular or preceding estate. The right to maintain such action is well settled, on principle and authority; the test of its propriety being, whether the injury complained of is permanent, affecting the reversion; or temporary only, affecting the tenant of the particular estate. A sale of the absolute interest, by the tenant of the particular estate, or by a stranger, instead of the qualified interest, is an injury affecting the reversion, for which the reversioner may maintain this action. Arthur v. Gayle, 38 Ala. 259. To the action, two special pleas were interposed, which were demurred to; the demurrers were sustained, and the judgment thereon is the matter now assigned as error. The first of these [Williams v. Brassell.] pleas avers that, after the seizure of the personal property, in which the reversion is claimed, and during the continuance of the preceding estate, the plaintiff became possessed of the property, and has remained in possession, undisturbed by the defendant. On demurrer, all pleading is construed most strongly against the pleader, for the presumption is, he states the facts most favorably to himself. In all actions for the wrongful taking or conversion of personal property, it is matter in mitigation of damages, that the plaintiff, subsequent to the taking or conversion, regained possession of the property, or that it was restored to him by the defendant. In such case, the plaintiff is still entitled to recover, whatever he may have been compelled to expend in regaining possession, or whatever damage the temporary taking or conversion may have caused him. Ewing v. Blount, 20 Ala. 694; McGurry v. Dyer, 47 Penn. 118; Ford v. Williams, 24 N. Y. 359. The averments of the plea are, that the plaintiff became possessed of the property, during the continuance of the temporary interest. The plea does not aver that the defendant had any agency in the plaintiff's obtaining possession, nor that there was not an injury to the plaintiff's right of reversion by the wrongful taking; nor that the property was in as good condition when plaintiff regained possession, as when it was wrongfully taken by the defendant; nor that the plaintiff was not put to expense in regaining possession. The plaintiff, in no event, could have recovered for the use of the property during the continuance of the preceding estate; nor is there in his complaint any claim of recovery therefor. His right of recovery is limited to the injury to the reversion. That the property passed into his possession during the continuance of the preceding estate, is not material. The plea should have averred, in addition to the fact that the plaintiff became possessed of the property, that his reversionary interest was uninjured by the wrongful taking or conversion, and that he regained possession without expense or loss. It is presumed from the absence of such averments, that they could not be made consistently with the truth. The want of them rendered the plea demurrable. The remaining special plea avers, that the plaintiff, at the sale of the property by the defendant, purchased it, and accepted possession thereof from the defendant. The matter of this plea certainly forms no defence to this action. The plaintiff may have preferred purchasing the property, rather than permit it to pass into the possession of a stranger, asserting an adverse right to him. Such purchase does not legalize or ratify the wrongful act of defendant in making sale of the property. It may diminish the plaintiff's right of recovery, to the amount he paid on such unauthorized sale; but it does not absolve the [Andrews v. Melton.] defendant from all liability. If it did, he would be permitted to found a defence on his own wrong. The taking and sale of the absolute property is the wrong of which the plaintiff complains. The wrong continues, though the plaintiff became the purchaser of the property, and paid the defendant money which he has no right to retain. Murray v. Burling, 10 Johns. 180; Ford v. Williams, 24 N. Y. 359. The circuit court correctly sustained the demurrers to the pleas, and the judgment is affirmed. Andrews v. Melton. Bill in Equity by Widow and Children of Deceased Defendant in Execution, to establish Homestead Exemption against Purchaser at Sheriff's Sale. 1. Homestead exemption in favor of widow and minor children of insolvent dece dent; when established in equity against purchaser at sheriff's sale. - Where the lands of a defendant in execution are sold and conveyed by the sheriff, "subject to homestead exemption," after the defendant has filed with him a proper affidavit, claiming as a homestead a particular tract, which, though inaccurately described by numbers, is sufficiently identified, and is not shown to be excessive in quantity or value; and the purchaser afterwards recovers the possession, under his deed from the sheriff, in an action at law which is still pending, his judgment having been reversed on error; and the defendant dies, and his estate is insolvent, his widow and minor children may, by bill in equity, establish their title to the homestead as against the purchaser, and have his deed from the sheriff declared inoperative and void as to that portion of the land. 2. Homestead exemption; affidavit and claim. — It is not necessary to the validity of a claim of homestead exemption, when sought to be established in equity against a purchaser with notice, that the affidavit claiming it should describe the land accurately, either by the numbers of the government surveys, or by metes and bounds; it is sufficient to describe it by any identifying name or objects; the metes and bounds, quantity, and value, may be afterwards ascertained, when necessary, independently of the claimant. 3. Compensation for improvements; when not allowed to purchaser at sheriff's sale. A purchaser of lands at sheriff's sale, who buys with notice of an asserted claim by the defendant to a homestead exemption, and whose deed recites that the land was sold "subject to homestead exemption," cannot claim compensation for valuable improvements erected by him on the land, when the claim of exemption is enforced against him in equity at the suit of the widow and minor children of the deceased defendant. APPEAL from the Chancery Court of Elmore. Heard before the Hon. CHARLES TURNER. The bill in this case was filed on the 31st August, 1871, by the widow and minor children of Thomas S. Melton, deceased, against Henry Andrews; and sought to establish a homestead exemption, in favor of the complainants, in a tract of land containing forty acres, which was described as the northwest quarter of the northwest quarter of section twenty-four, township twenty, range twenty-one, and which the defendant [Andrews v. Melton.] claimed under a purchase at sheriff's sale under execution against said Thomas S. Melton in his lifetime; and the bill also prayed that the sheriff's deed to the defendant, as to this particular tract of land, might be cancelled, and declared inoperative and void. On final hearing, on pleadings and proof, the chancellor held the complainants entitled to relief, and rendered a decree in their favor; declaring the sheriff's deed inoperative and void as against their claim, and ordering a reference to the register as master, to ascertain the value of the rents and profits of the land while in the defendant's possession; but he also held that the defendant was entitled to compensation for valuable improvements erected by him on the land during his possession, and ordered a reference as to this matter also. The appeal is sued out by the defendant, who assigns as error the decree in favor of the complainants; and the complainants, by consent, make a cross-assignment of error on the allowance of the defendant's claim to compensation. ELMORE & GUNTER, for appellant. J. FALKNER, contra. B. F. SAFFOLD, J.- In November, 1866, the sheriff sold under execution all of the real estate of Thomas S. Melton, subject to his right of homestead exemption. Previous to the sale, Melton exhibited and delivered to the sheriff his affidavit of claim to "the following described land, as a homestead, to wit, the north-west fourth of half section twenty-four, township twenty, range twenty-one, known as Thomas S. Melton's Mill place, in Tallapoosa County, Ala." The land was purchased by the appellant, Andrews, he being one of the execution creditors. It seems to have been the sheriff's own suggestion, to sell all of the land subject to the exemption, rather than to have the property so claimed valued and set apart, as required by R. C. § 2881. Under the sheriff's deed, Andrews, by suit in ejectment, recovered, and obtained possession of this portion of the land over Melton's occupancy of it. But this judgment was reversed, and the suit is still pending in the cir cuit court. The widow and minor children of Melton file this bill, to establish their right to the northwest quarter of the northwest quarter of the said section twenty-four, and to have Andrews's deed set aside as to so much of his purchase. The affidavit of Melton describes the land claimed inaccurately, in one respect. The northwest quarter of a half-section expresses no usual or customary sub-division of the section. But a prominent object, situated upon it, is mentioned, which 51 402 110 437 51 402 122 564 [Graves's Administrator v. Flowers.] designates it as well, to wit, the "Mill," or "Mill place." The quantity, or the metes and bounds, only is indefinite. This is not important, as the metes and bounds and the value are to be ascertained, independently of the claimant, when necessary. The proof sufficiently sustains the decree of the chancellor, in respect to the identity of the portion claimed, or intended to be claimed. The quantity allowed, only forty acres, is not excessive. The value is not shown to be greater than the law permits, by any preponderance of testimony which would justify a reversal on this ground. Besides, the decree which declares Andrews's deed inoperative, as to the entire quarter of the quarter-section, refers to the register the ascertainment of its cash value at the time of the sale. When his report comes in, and is confirmed, the court may conform its decree to the finding, and then issue the writ of possession. The defendant, coming into the possession of this property in the manner he did, is not entitled to pay for the value of improvements made by him. He knew his title was disputed. Horton v. Sledge, 29 Ala. 478, and authorities there cited. There seems to be no error for which the decree should be reversed. The decree is affirmed. Graves's Administrator v. Flowers. Action on Judgments of Justice of the Peace. Judgment against executor not binding on successor. A judgment against an executor is, as to a succeeding administrator de bonis non, res inter alios acta: it is neither binding on him, nor admissible as evidence against him. APPEAL from the Circuit Court of Pike. Tried before the Hon. J. MCCALEB WILEY. This action was brought by Richard Flowers, against Charles Graves, as the administrator de bonis non, with the will annexed, of James Graves, deceased; was founded on several judgments, which the plaintiff had recovered before a justice of the peace in said county, in February, 1861, against Mrs. Sarah Graves, as the executrix of the last will and testament of the said James Graves; and was commenced on the 29th March, 1870. There was a demurrer to the complaint, on the ground that it showed no cause of action against the defendant; but the court overruled the demurrer, and in its various rulings on the pleadings and evidence, and in the charges to the jury, held the judgments admissible evidence against the defendant, and conclusive on him; and these rulings, to which exceptions were reserved by the defendant, are now assigned |