A leading case, in Alabama, on this subject is Callen v. Mcdaniel, 72 Ala. 96, in which a verified bill, containing a statement of facts, by the complainant was treated as an admission against him in a collateral suit. In that case, the bill, in a former action between the same parties, contained an admission against the complainant's interest in the instant suit and the court held the admission sufficient evidence of the fact as against the complainant.

The rule, as laid down in Callen v. McDaniel, has been followed in Charlie's Transfer Co. vs. Leedy & Co., 9 Ala. App. 652, 64 So. 205, where it was said, "Pleadings, unsworn to, are regarded as the mere suggestion or declarations of a party's counsel, and statements of fact therein are not admissible against him.” The same rule was cited with approval and followed in Ex parte E. C. Payne Lumber Co., 203 Ala. 668, 85 So. 9.

T. D. S., Jr.

FIXTURES-RIGHTS OF Mortgagee of ReaLTY AS TO CHATTELS ANNEXED SUBSEQUENTLY TO MORTGAGE-EFFECT OF AFTER ACQUIRED PROPERTY CLAUSE-EFFECT OF NOTICE OF CONDITIONAL SALE (Tennessee, 1928)-Air compressor was purchased by debtor and installed in brick manufacturing plant on which defendant held a mortgage containing an after acquired property clause. By the terms of the contract for the sale of this machine, it was agreed that title to the same should remain in the seller until all deferred payments should be made. The defendant mortgagee was without notice of the purchase of the air compressor or of its conditional sale feature. The Supreme Court of Tennessee held that where personal property is sold for the purpose of being annexed to the buyer's realty and is so annexed, an agreement between the seller and the buyer that it shall remain the seller's personal property will not bind vendee under foreclosure sale or mortgagee under instrument containing after-acquired property clause. W. J. Savage Co. v. Mayfield, 11 S. W. (2d) 855.

There are two well defined and contrary views as to the effect of a chattel mortgage or conditional sale upon personal articles which are attached to mortgaged realty. Although a conditional sale of things about to be annexed to the realty is a contract,

express or implied between the owner of the chattels and the owner of the realty that these things shall retain their chattel character after their annexation to the realty and may be removed if necessary to enforce the lien on the purchase price, yet according to one line of authorities, such things even if they can be removed without injury to the realty, are a part of the security of the mortgagee of the realty and cannot be removed without his consent. This is sometimes called the Massachusetts doctrine, because it was first established in that state. Meagher v. Hayes, 152 Mass. 228, 25 N. E. 105, 23 Am. St. Rep. 819; Fuller Warren Co. v. Harter, 110 Wis. 80, 85 N. W. 98, 84 Am. St. Rep. 867; Porter v. Pittsburg Bessemer Steel Co., 120 U. S. 649, 30 Law. Ed. 830, 7 Sup. Ct. 1206; Beeler v. C. C. Mercantile Co., 81 Idaho 644, 70 Pac. 943, 60 L. R. A. 283.

Under this view of the law an agreement that fixtures to be annexed to mortgaged land shall retain their chattel character, is not binding upon such prior mortgagee of the land without notice to him and without his consent, express or implied.

The contrary doctrine that chattels permanently annexed to mortgaged realty can by arrangement with the mortgager or by the implied agreement arising from a conditional sale or chattel mortgage be made to preserve their character as personalty, as against the mortgagee of the realty, is firmly maintained in several states. This is the rule which has been followed by the Alabama Supreme Court in cases cited hereafter: Town of Camden v. Fairbanks, Morse & Co., 204 Ala. 112; Broaddus v. Smith, 121 Ala. 232, 20 So. 89 (Conditional sale); Wood v. Holly Mfg. Co. 100 Ala. 326, 13 So. 948, 46 Am. St. Rep. 56; Woodliff v. Citizens Building and Realty Co. 215 N. W. 343 (Mich.); Northwestern Mut. Life. Ins. Co. v. George, 77 Minn. 319, 79 N. W. 1028; General Electric Co. v. Transit Equipment Co. 57 N. J. eq. 460, 42 Atl. 101.

Nor does a clause in a prior mortgage of real estate to the effect that the mortgage shall cover after-acquired property give the mortgagee a superior claim to chattels annexed thereto, as against the vendor by a conditional sale contract, since such clause in a mortgage attaches only to such interest as the mortgagor has when the mortgage is executed. Wood v. Holly Mfg.

Co., supra; Tippett v. Barham, 180 Fed. 76, 103 C. C. A. 430, 37 L. R. A. (N. S.) 119.'

Whether the vendor's right to the chattels is inferior to that of a prior mortgagee under an after-acquired property clause would seem to depend upon whether the chattels have been so attached as to have become a part of the realty. In re Sunflower State Refining Co. 195 Fed. 180. The same rules apply in determining what articles are part of the realty in this case, by the weight of authority, as when the annexation is previous to a mortgage or conveyance. But in Alabama it is stated that in the case of an annexation after the making of the mortgage on the realestate stronger evidence of an intention to make the article an accession to the realty is required. Tillman v. De Lacy, 80 Ala. 103. No other cases state any such distinction, and it is questioned in Muehling v. Muehling, 181 Pa. 483, 37 A. 527, 59 Am. St. Rep. 674.

It was held in Cox v. New Bern Lighting and Fuel Co. 151 N. C. 648, 65 S. E. 648 that notice to the prior mortgagee of the realty of the annexation of chattels covered by a chattel mortgage or conditional sale agreement is not essential to preserving the rights of the chattel vendor or mortgagee. See Bromich v. Burkholder, 98 Kan. 261, L. R. A. 1916 F. 1275, 158 Pac. 63. Also the failure to register a lien existing at the time of the acquisition of the property by the mortgagor does not have the effect to subordinate it to the real estate mortgage, under registration laws intended for the protection of subsequent, not prior, purchasers and creditors. Holt v. Henley, 232 U. S. 637, 58 L. ed. 767, 34 Sup. Ct. Rep. 459; Blanchard v. Eureka Planing Co., 58 Or. 37, 37 L. R. A. (N. S.) 133, 113 Pac. 55.

What would be the effect of failure to give notice in Alabama as to the subordination of the lien of the conditional vendor is merely conjectural. In view of section 6898 of the Code of 1923 it is probable that the Alabama Court would hold that no

Note 1. It must be remembered that this statement is true only in cases in which the annexed chattel does not become an integral part of the realty. In re Sunflower State Ref. Co. 195 Fed. 180.

tice, either constructive or actual-171 Ala. 420, 55 So. 100,-is essential to the creation of such a lien.

S. H. L.

FRAUDULENT CONVEYANCES-STOCK IN TRADE-(Indiana, 1929) The plaintiff brought an action for the purpose of having the defendant adjudged a receiver for certain fixtures under the Bulk Sales Act of Indiana which provides that, "The sale, transfer or assignment, in bulk, or any part of the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, transferor, or assignor, shall be void as against the creditors of the seller, transferor, assignor, unless ***" Section 8052, Burns' 1926. The defendant contended that the sale of the fixtures alone by the owner thereof to him without compliance with the requirements of the Bulk Sales Act relative to notice, in violation of the terms of such act, was not void. The Supreme Court of Indiana affirmed a judgment for the defendant, saying, "By the Bulk Sales Act, fixtures come within its provisions only when sold with merchandise." Hughes-Curry Packing Co. v. Sprague, 165 N. E. 318.

The Alabama Bulk Sales Act, section 8041 of the 1923 Code, provides that, "A sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade or in the regular and usual prosecution of the seller's business and a sale of an entire stock of merchandise in bulk or substantially in bulk shall be presumed to be fraudulent and void as against the creditors of the seller, unless ***" certain notices are given to the creditors.

Most of the states have a Bulk Sales Act, and while, of course, the language of the various acts differs widely, the phrase "stock of merchandise" is found frequently occurring in the statutes. A good definition of these words is found in the case of Gallus v. Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067, where the court said, "The phrase 'stock of merchandise' as used in the statute, properly and naturally describes articles which the seller keeps for sale in the usual course of his business. It does not naturally describe fixtures."

Obviously the main purpose of the Bulk Sales Acts is to protect the wholesalers. Escalle v. Mark, 43 Nev. 172, 183 P. 387, 5 A. L. R. 1512; Lewis, Hubbard & Co. v. Loughran, 85 W. Va. 235, 101 S. E. 465. In the latter case it was said, "What was the purpose of the Legislature in passing this act? Evidently to preserve for those engaged in the wholesale mercantile business, as security for the payment of their debts for merchandise, the merchandise itself, unless the same was sold in the ordinary course of trade. The language, ‘stock of merchandise, or any part thereof,' was never intended to include the furniture, fixtures, and appliances necessarily employed in the conduct of the business, for the very good reason that they are not sold by such merchants in the ordinary course of their business at all ✶✶✶”

In Georgia it has been held that the words, "goods, wares, and merchandise," as used in the Bulk Sales Act, are not to be taken in such a restricted sense as to exclude the usual and customary fixtures or accessories used in connection with the business to which they are appropriate, whenever their transfer is included in an absolute sale in bulk, out of the usual course of business, of the entire stock. Parham v. Potts-Thompson Co., 127 Ga. 303, 56 S. E. 460; Bank of La Grange v. Rutland, 24 Ga. App. 598, 101 S. E. 690. However the mere sale of fixtures alone does not come within the purview of the act. Martin v. Taylor et al., 24 Ga. App. 598, 101 S. E. 690.

Although the Supreme Court of Alabama has not yet defined the phrase "stock of merchandise," as used in our statute, it seems safe to predict that the meaning of these words does not include fixtures.

INSURANCE-NOTICE AND PROOF OF Loss-NECESSITY FOR COMPLIANCE WITH POLICY-(North Carolina, 1929)—will the mere failure to give notice of loss of incapacity within the time provided for in the insurance policy, bar a recovery on such policy? The plaintiff took out a life insurance policy with the defendant company. The policy provided for monthly payments to insured for life and a waiver of all future premiums in case of total and permanent disability, if before default in payment of any premium the insured gave notice to the company of such total dis