or any other portion of the realty, there being nothing in the instrument to control or vary their usual legal signification.

According to the bill, there is no misunderstanding or dispute of the facts in the case. There is no claim of ownership or title set up in the bill by the complainant acquired by adverse holding. Complainant's whole case, as we construe the bill and the brief of counsel, is rested upon the proposition that as defendant failed to cut and remove the timber within a reasonable time he thereby forfeited whatever of property interest he purchased and acquired by the deed of conveyance from the owner, and the "saw timber," by reason of the forfeiture, became vested in the complainant, although it was expressly reserved from the sale to De Bardeleben and excepted by De Bardeleben in the deed to complainant. We do not assent to the proposition.

The court did not err in sustaining the demurrer to the bill. Affirmed.

DEEDS-CONVEYANCE OF TIMBER-STATUTE OF FRAUDS. A contract for the sale of growing or standing trees is one concerning an interest in land, and is, therefore, within the statute of frauds, though there is a conflict of authority on the question; Note to Fish v. Capwell, 49 Am. St. Rep. 811. Standing timber is an interest in lands that may be acquired by deed, and the fact that the deed contains a provision that such timber must be removed within a definite period does not prevent the title thereto from vesting in the grantee: Mee v. Benedict, 98 Mich. 260; 39 Am. St. Rep. 543.

BECK & PAULI LITHOGRAPHING Co. v. HOUPPERT.

[104 ALABAMA, 503.]

FRAUD IN PROCURING CONTRACT-EFFECT OF.-If a party is induced by fraud and misrepresentation to sign a written Instrument, which he did not know he was signing, and which he did not intend to sign, such instrument is void, although he did not read it, or have it read.

FRAUD IN PROCURING CONTRACT-SUFFICIENCY OF PLEA. In an action to recover the price of goods sold under a written contract, a plea that the contract was procured by fraud is sufficient, and not demurrable, where it avers that the plaintiff's agent drew up the contract sued on, read it over to the defendant in the terms agreed upon, and, believing that the instrument was written as read, the defendant executed it, and where the plea then sets out the difference between the instrument the defendant signed and the one he meant to sign.

FRAUD IN PROCURING CONTRACT-BURDEN OF PROOF. The burden of proof is on the party who undertakes to impeach a written instrument for fraud to establish the fraud by clear and satisfactory evidence.

SALES EVIDENCE IRRELEVANT AND INADMISSIBLE.In an action on a contract to recover the purchase price of goods

sold, evidence as to the extent of defendant's business, and as to the quantity of goods annually consumed by him of the character purchased, or which would be suitable for his business, is irrelevant and inadmissible upon the issue iuvolved.

Action to recover the purchase price of goods alleged to have been sold by the plaintiff lithographing company to the defendants under a written contract contained in a proposition to furnish stationery at certain prices, and which was accepted by the defendants. The plaintiff demurred to the two special pleas mentioned in the opinion on the following grounds: 1. That they showed that defendants were negligent in not reading over said contract before they executed the same; 2. That it was not alleged that the defendants, at the time of the execution of said contract, were illiterate and unable to read the same. These demurrers were overruled. The court rendered judgment for the defendants, and the plaintiff appealed.

Mountjoy & Tomlinson and Tarrant & Kronshage, for the appellant.

R. H. Pearson, for the appellees.

500 COLEMAN, J. The complaint contains several counts, some of which, are in the common form, and others upon a breach of a special agreement. The defendant pleaded a general issue and several special pleas.

The only assignments of error which arise upon the pleadings are to the ruling of the court, overruling plaintiff's demurrer to two pleas filed on the 9th of October, 1893. These two pleas were intended to answer the counts of the complaint based upon an alleged breach of a written agreement, and aver as a defense that the execution of the written agreement was procured by fraud. It is well settled that a person who signs an instrument without reading it, when he can read, cannot, in the absence of fraud, deceit, or misrepresentation, avoid the effect of his signature, because not informed of its contents; and the same rule would apply to one who cannot read, if he neglects to have it read, or to inquire as to its contents. In such case, ignorance of the contents is attributable to the party's own negligence: Goetter v. Pickett, 61 Ala. 387; Pacific Guano Co. v. Anglin, 82 Ala. 492; Watts v. Burnett, 56 Ala. 340; Cannon v. Lindsay, 85 Ala. 202; Jones v. Cincinnati etc. R. R. Co., 89 Ala. 376; Sheldon v. Carter, 90 Ala. 380.

In these cases, it was held that the ignorance of the party was attributable to his negligence in not reading the instrument, or in not making proper inquiry of its contents, and

where there is an absence of fraud, deceit, or misrepresentation. But the rule is otherwise where its execution is obtained by a misrepresentation of its contents, the party signing a paper he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter aspect of the case, that the party signing had an opportunity to read the paper, for he may have been prevented from doing so by the very fact that he trusted to the truth of the representation made by the other party with whom he was dealing: Burroughs 507 v. Pacific Guano Co., 81 Ala. 255; Johnson v. Cook, 73 Ala. 537; Foster v. Johnson, 70 Ala. 249; Davis v. Snider, 70 Ala. 315; Kinney v. Ensminger, 87 Ala. 340.

The facts as averred in these pleas, show that the parties came to an agreement that plaintiff's agent drew up the writings, and then read them over to the defendants, in the terms agreed upon, and believing that the instrument was written as read over, they executed it. The pleas then show the difference in the instrument signed and the one he intended to sign. If these averments are true, the instrument was procured by fraud and misrepresentation, and is void. The demurrer was properly overruled.

The court permitted the defendants to testify as to the extent of their business, and as to how much stationery and materials of the kind, the subject of the litigation, were annually consumed by them. This was error. It was no part of the vendor's duty, under the facts of this case, to ascertain and determine, whether the character or quantity of the goods and articles offered for sale by them would be useful or beneficial to the trade and business of the purchaser. Nothing that he said was relied upon as an inducement to make the purchases, and there is no evidence that the vendor had any information on the subject. The question was directly settled in the case of Shrimpton v. Brice, 102 Ala. 655.

The case was tried by the court without the intervention of a jury, and, under the statute, this court has jurisdiction to render final judgment. The evidence is in such condition that we think the ends of justice would be better served by a reversal and remandment of the cause. Where the trial court has the opportunity to hear the witnesses and observe their manner of testifying, it has an advantage in weighing evidence which is not furmished to this court by the record. We will, therefore, forbear making any comment or criticism of the evidence, least what we say might have undue weight on another trial. It should

be borne in mind that the burden is on the party who undertakes to impeach a written instrument for fraud to establish the fraud by clear and satisfactory evidence.

Reversed and remanded.

FRAUD IN PROCURING CONTRACT vitiates it: Finlayson v. Finlayson, 17 Or. 347; 11 Am. St. Rep. 836. Where a deed or other instrument has been misread to the party executing it, or where some other imposition or circumvention has been practiced upon him, whereby he has been led to sign and seal an instrument which he never intended to sign, or where another instrument has been substituted for the one which he intended to execute, even a court of common law may treat the instrument as if it had never had any legal existence: See monographic note to McArthur v. Johnson, 93 Am. Dec. 596, on fraud which will avoid a deed at law. The burden is on a party attacking a contract as fraudulent to prove the fraud by positive or circumstantial evidence: Giddings v. Steele, 28 Tex. 733; 91 Am. Dec. 336. For special rules as to fraud in procuring the delivery of negotiable instruments, see Willard v. Nelson, 35 Neb. 651; 37 Am. St. Rep. 455, and monographic note thereto.

ALABAMA STATE LAND COMPANY V. THOMPSON.

[104 ALABAMA, 570.]

ALTERATION OF INSTRUMENTS-REMOVAL OF SUSPICION.-If any suspicion is raised as to the genuineness of an altered instrument, whether it be apparent upon inspection, or is made so by extrinsic evidence, the party producing it, and claiming under it, is bound to remove the suspicion by accounting for the alteration.

ALTERATION OF INSTRUMENTS-ALTERED DEED AS EVIDENCE OF TITLE.-A deed to land, confessedly valid when executed passes title, which is not divested by the grantee's subsequent unauthorized alteration of the deed in a material part, and the deed, though altered, may still be given in evidence to prove the conveyance and the existence of title in the grantee.

ALTERATION OF

INSTRUMENTS-EVIDENCE-ADMISSIBILITY OF ALTERED DEEL.—If a party claims title to land under a deed which shows an erasure of the reservation of the minerals in the land, it cannot be received as evidence of his title to the minerals, in the absence of a sufficient explanation of the erasure. Without such explanation, the deed must be deemed to have been taken as if it contained the erased words reserving title in the mineral deposits in the grantor; but the deed is admissible in evidence to show title in the grantee to the land described in it, excepting only the minerals in the land.

Ejectment brought by the appellant land company against the appellees, Thompson and others. The case was tried without a jury. There was a judgment for the defendants, and the plaintiff appealed.

Smith & Lowe, for the appellant.

Dortch & Martin, for the appellees.

571 MCCLELLAN, J. This is an action of ejectment. The demise relied upon is laid in John Swan and John A. Billups, trustees, etc. The defendants in respect of a part of the land sued for the northwest quarter of the southeast quarter, and the southwest quarter of the southwest quarter of section 23, township 11, range 6, lying in Etowah county, Alabama-claimed title through a deed from said Swan and Billups to Shaw, bearing date, March 13, 1878, and title in Swan and Billups having been shown by plaintiff, they offered this deed in evidence. Its introduction was objected to by the plaintiff on the ground "that it shows on its face that it has been mutilated, and upon the further ground that the clause, 'minerals reserved', in the deed has been erased by a pen." This objection was overruled, the deed was admitted, plaintiff was cast as to this land, and reserving exceptions to this ruling and also to the judgment, which was without jury, now appeals to this court.

The original deed from Swan and Billups to Shaw accompanies this record for our inspection. It is a printed form prepared especially for conveyances by Swan and Billups, as trustees of the Alabama and Chattanooga railroad lands. In the body of this deed are four erasures of printed matter. It was in the contemplation of the draughtsman of this form that the lands would be sold for cash in part and on credit for the balance, and that purchasers would execute their notes for the deferred payments. Hence, in the form there is a reference to notes executed by the purchaser. But Shaw paid cash in full, as is shown by the recitals, and that part of the deed referring to the notes is erased. Again, the form contemplates a sale to two or more persons, and in it there is a reference to the purchasers, "or either of them." Shaw was the sole purchaser in this instance, and, therefore, the words, "or either of them," are erased. The other two erasures are of the words "minerals 572 reserved," where they occur at two places in the form. The context of the deed fully explains the first two erasures, but not so in respect of the last two. And we feel safe in concluding affirmatively that the former were made at the time the printed form was filled out and before the execution of the deed. presumption to like effect in respect to the latter would be indulged if it were not for certain suspicious facts apparent on the face of the deed, and the conclusions to which these facts force

AM ST. REP., VOL. LIII.—6

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