
    Oakley et al. v. Howison.
    
      Action against Purchaser at Administrator’s Sale, to recover Purchase Price of Lands sold.
    
    1. Action against purchaser at administrator’s sale for difference hetioeen price hid hy \7iim; sufficiency thereof. — In an action by the heirs of an intestate to recover from a purchaser the difference between the price bid by him at the sales of the ■ intestate’s lands for division, a complaint which avers that at the first sale the defendant bid a certain price, which was greater than that bid at the second sale, but that he refused to give sufficient security as required by law and by the order of .the court, and then avers, that “defendant was notified that the administrators would report his sureties as insufficient and worthless to the court,” and that defendant was.notified that the court-would not accept such worthless sureties, is insufficient in its averments of notice and is subject to demurrer for insufficiency.
    2. 8ame; same. — In such a case, a count of the complaint which avers a total failure and default on tlie part of the defendant to give the sureties as required by law and by the order of the court under which the sale of the lands was made, and there was no effort whatever on the defendant’s part to comply with such order, it is not necessary to further aver in said count that the defendant had notice of such failure and default; 'and such count of the complaint is not insufficient and subject to demurrer for its lailure to aver such notice to the defendant.
    3. Same; same. — In such a case, a count-of the complaint which avers fraud on the part of the defendant in bidding at said sale, in that he never intended to comply with, the terms of the first sale, and he knew that the sureties on the notes he offered were wholly insolvent, and that he gave such notes wdth the purpose and intention on his part of preventing the confirmation by the court of the sale, and all of this was done in order to compel a resale, whereby he would be enabied to purchase said lands for a much less price, it is not necessary to further aver in said count the service of notice upon the defendant for him to appear in court and show cause why his first purchase could not he confirmed and a resale should not be ordered; and such count is not subject to demurrer for' failure to aver such notice.
    Appeal from the Circuit Court of Bibb.
    Tried before the I-Ion. John Moore.
    William Oakley died intertate seized of certain lands situate in Bibb county. On application of the administrators of the estate of William Oakley said lands were, by order of the probate court, sold for distribution among- the heirs of said William Oakley. • The terms of 'sale were one-half of the purchase money payable in one year from the date of sale and the other one-half payable in two years, the purchase money to be secured by notes with sureties as required by law. At the sale under the order of the probate court one Allen P. Howison bid off the lands at the price of $8.75 per acre and executed his notes for the purchase price, but refused to give sufficient sureties as required. The administrators of the estate of William Oakley, deceased, reported the facts back to the court and also reported the defendant’s failure to give the notes with the required sureties. Upon the consideration of said report the probate court held the bid sufficient, accepted it and confirmed the ¡sale, but on account of Howison’s refusal to give the notes with the required sureties, the sale was vacated, annulled and set aside and the court ordered said lands resold. The lands were again sold by order of the court and the said Allen P. Howison again became the purchaser of said lands at the second sale, but at a much less price, to-wit, $5.35 per -acre, and he gave his notes with proper security as required by the order of the court and received the conveyance to said land. Thereupon the appellants in the present case, Nellie Oakley and others, who were the heirs-at-law of William Oakley, deceased, brought the present suit against Allen P. Howison to recover the difference between the price bid by said Howison at sales of lands for division under the order of the probate court and the expenses of the resale. This is the second appeal in this ease. On the first trial of the case there was a verdict for the plaintiffs, and the defendant appealed. After tlie remandment of the cause the complaint was amended. As amended the complaint contained seventeen counts. The first and-second counts sought to recover -only the amount due upon the notes executed by' the defendant on the first sale. The third count sought to recover the full purchase price bid at the first sale, without averring a resale. The other counts of the complaint sought to recover the difference between the price bid at the first and second sales, together with the costs. On the present appeal it is only necessary to set out the eighth and seventeenth'counts of the complaint.
    The eighth -count of the complaint, as amended, was as follows: “Eighth count-: The plaintiffs claim of the defendant the sum -of seven thousand, four hundred and thirty-six ($7,436) dollars, with interest thereon from the 31st day of January, 1887, as damages by reason of the breach of the following contract, to-wit: Plaintiffs aver that they are the lieirs-at-law of William Oakley, deceased, who died intestate in the year 1888; that said William Oakley -was at the time of his death a resident citizen of Bibb county, Ala., and that during -his life lie ivas seized and possessed of a large estate of lands situated in said State and county; that on the 10th day of July, 1883, N. P. Oakley and Fielding Oakley were duly and legally appointed administrators of said William Oakley’s estate by the probate court of Bibb county, and that they immediately qualified and entered upon their duties as isiuch administrators; that after they -had been duly qualified they filed in the probate -court of said -county their petitions praying for a sale of the lands of -said estate for the purpose -of division among the heirs of said estate; that on the hearing of said petition by the said court the lands were decreed to be sold f-or the purpose of division as aforesaid, in accordance with the prayer of the petitioners, and it was ordered and decreed that said lands be sold at public outcry to the highest bidder on -credit, onelra if due in one year and the other half two years after date of the sale, and that said amounts be secured by note-s with securities as required by law; that- due -and legal notice of said sale was given; that on, to-wit, the 31st day of January, 1887, said administrators, under and by virtue of tlie orders and decrees of the court for said purposes, did offer and. expose said lands for sale to the highest, best and last bidder, and that the defendant, A. P. Howison, bid off a portion of said lands, to-wit, two thousand and forty (2,040) acres, at the price of eight dollars and seventy-five cents ($8.75) per acre, amounting in all to seventeen thousand eight hundred and fifty ($17,850) dollars, and that said lands were knocked off to defendant at that price, he being the highest, best and last bidder, and on the terms of sale as aforesaid, and that defendant well knew the terms of sale at the time he hid off said lands, and had the 'same knocked off to him as aforesaid; that the defendant did then and' does yet refuse and fail to perform his part of said contract of purchase. And did then and has ever since failed and refused to comply with the terms of his said bid; that the said administrators, as required by law, reported back to the court the proceedings of said sale as aforesaid; that the said administrators duly reported to the court the proceeding of s-aid sale, and also reported that the said defendant, .although the highest and best bidder at the said sale, had failed and refused to carry out the terms of his said 'contract of purchase; that the said court accepted the said hid, but on account of the defendant's failure to comply with the terms of the said purchase, the said court, vacated and set aside the said sale and ordered the said lands resold on account of the defendant’s failure so to comply with the terms of his said hid. (And plaintiffs aver that after said sale was made and before it was set aside because of defendant’s failure to give notes with sureties as required by 1-aw, for the said purchase price of said lands; ample time was allowed defendant- to furnish sufficient sureties on said notes, but he wholly failed so to do. And plaintiffs aver that at the time said notes were given the defendant knew that the sureties thereon were insufficient and worthless. And defendant had notice that the .administrator® would report to the court that said sureties were insufficient.) That said lands were again offered for sale by said administrators, by virtue and under tlie orders" and decrees of the court, for tlie purposes aforesaid; that due and legal notice of said sale was given as required by law for such purposes; and that defendant had notice of all such orders; decrees and notices, and that at the next sale of said lands, as aforesaid, to-wit, on the 4th day of November, 1889, the said defendant again became 'the best, last and highest bidder for said lands, which were knocked off to him as the purchaser, but at a much less price than before, to-wit, at the price of five dollars and thirty-five cents ($5.35) per acre, amounting in all to ten thousand nine hundred and fourteen ($10,914) dollars, being six thousand nine hundred and thirty-six ($6,936) dollars less than his bid at the first sale. The defendant having complied with the terms of the last sale the same was reported back to tire court by the administrators as aforesaid, and a deed ordered to be made to the defendant conveying said lands, which was accordingly done, as required by law. And plaintiffs aver that the lands were not resold after the first sale, namely, the sale made on the 31st day of January, 1887, until the 4th day of November, 1889, by-and with the consent of the defendant; that in consequence of defendant’s failure to c-omply with his isaid bid, expenses and costs were incurred necessarily in making resales of the said property to the amount of, to-wit, $500. Wherefore the plaintiffs, claim of the defendant the said sum of $7,436 composed of the sum of $6,936 difference in price at which the said lands sold at the first sale and the price at which said lands sold at the resale, and the sum of $500 as expenses and costs of such resale, together 'with the interest on each of said several 'sums from, to-wit, the thirty-first day of January, 1887.”
    The seventeenth count Avas as íoIIoaatsi: “17. Plaintiffs further claim of the defendant the sum of, to-Avit, $7,436, with interest thereon from, to-wit, the 31st day of January, 1887, as damages, for the breach by defendant of the following contract, to-Avit: Plaintiffs aver that they are the heirs-at-law of William Oakley, deceased, aaOio died intestate in the year 1883, and Avas at the time of his death a r esident citizen of Bibb county, Alabama; that during bis life and at the time of his death the said William Oakley was seized and possessed of a large estate in lands situate in said county and in Chilton county, Alabama; that after the death of the said 'William Oakley, as aforesaid, and on, to-wit, the tenth day of July, 1883, N. P. Oaklay and Fielding Oakley were duly and legally appointed administrators of the estate of the said William Oakley by the probate court of said Bibb county, and that they immediately qualified and entered upon their duties as said administrators; that 'after they had so qualified and entered upon their duties the said, administrators filed in the probate court of said Bibb county their 'petition praying for a sale of the lands of said estate for the purpose of a division among the heirs of said estate, and that the said petition was due and regular and in accordance with the statutes in such cases made and provided ; that on the hearing of said petition by the said probate court the said lands were decreed to be sold for the purpose of division as aforesaid in accordance with the prayer of said petition by said administrators, and it was ordered and decreed that said lands be sold by the said administrator at public outcry to the highest bidder on a credit, one half •due in one year and the other half due in two years after the date of the sale, and that said amounts be secured by note® with 'sureties as required by law; that due and legal notice was given as required by law, and that on, to-wit, the thirty-first day of January, 1887, said administrators under and by virtue of the order and decree of said court, for said purpose, did offer and expose said land for sale to the highest and best bidder, and that defendant bid off a portion of said lands at said sale, to-wit, two thousand and forty acres, at the price of, to-wit, eight dollars 'and seventy-five cents per acre, amounting in all to, to-wit, seventeen thousand eight, hundred and fifty dollars, and that said lands were thereupon knocked off to- defendant at that price, he being the highest, last and best bidder, and were so sold to defendant on the terms of sale as aforesaid, -and tliat defendant well knew the said terms of sale at the time lie bid off said lands and had the same knocked off to him as aforesaid; that the defendant did then and does yet and has even since refused and failed to perform his part of said contract of purchase, and did then refuse and fail and has ever since said sale refused and failed to comply with the terms of his said bid in this, that he has always refused and failed and does now refuse and fail to give the notes with sureties as required by law, in accordance with the terms of said decree and order of said court and in accordance with the terms of the said bid f’or said lands, for the amount of his said bid, and as according to his promise when he became, said highest bidder for said lands at ,said sale he bound himself to do; that the said administrators, as required by law, reported back to the said probate court the proceedings of said sale as aforesaid; and also reported at the same time that the said defendant, although the highest, last and best bidder at said sale, had failed and refused to carry out the terms of his said contract of purchase, or to comply with the terms of his said bid; that the said defendant, after the said bid was made "by him prior to the maldng of the said report by the said administrators to the said ’ probate court, offered to the said administrators two notes, one for one-half of the amount of said bid, payable one year after the date of sale, and the other for one-half of said amount and payable two years after the date of said sale, but that neither >of said notes, at the time it was offered, nor ever after-wards, had a surety or sureties as required by law, but each of them had signed thereto as sureties for defendant the names of only two persons who* were worthless and insufficient as sureties and each wholly insolvent and worth less than the amount of his exemptions allowed to them by law (all of which was, at the time they were offered, well known to said administrators and to the defendant and to the judge of the probate court of Bibb county, and defendant well knew it was well known both to said administrators and to said judge of probate; that thereupon said administrators declined to accept said sureties as sufficient upon said notes and informed defendant prior to making their said report of sale to said probate court that they would, in said report, report and make known to said probate court that the said sureties were wholly insufficient and insolvent and not such as required by law) ; that said administrators did so report said sureties as insufficient and not such as required by law when they made their said report of sale, and on the hearing of said report thesaid administrators made proof before said court of the said insufficiency of said sureties (and it was well known to the defendant that the said sureties would be and were as aforesaid reported to said probate court as insufficient and not such aisi required by law, and that proof of the same would be and was made before the said probate court, and that the said probate 'Court had on the hearing of the said report so found and decreed said sureties to be insufficient. And the hearing of said report of said administrators by said court and its determination and decree that said sureties were insufficient were each due and regular and in all things as required by law. And plaintiffs further aver that defendant procured and offered said insufficient, worthless and insolvent sureties on said note® for the purpose of preventing the court from approving them, and for the purpose of procuring said court thereby to annul and ■set aside said sale; and that defendant at the time he made the said hid for said lands did not intend to comply with the terms of his said hid, but did intend to prevent and avoid a confirmation of said sale at which he hid in said lands as aforesaid, he offering said insufficient sureties and procuring the court to declare them insufficient and to set aside said sale; and plaintiffs further aver that it was the purpose of defendant at the time he.made said bid to procure a resale of said lands so that at such resale he might purchase the same at a greatly less price and that to accomplish the said purpose the defendant so offered said insufficient sureties) ; and plaintiffs further allege that the report of sale of said lands to defendant which was -made by said administrators to the said probate court- came on regularly to he heard in said probate court after the same had been regularly filed and ordered to lie -over and set for hearing, and that- upon the hearing of said report the said court accepted the said bid- of defendant, but declared that the said sureties upon -said notes offered by defendant were insufficient, and on account-of defendant’s failure to comply with the terms of said purchase and on account of hi® failure to offer1 sufficient sureties on said notes a-s required by law, and because said sureties were decreed and found by said court to be insufficient, the said court vacated and set aside the said sale to the defendant and -ordered the said lands to be resold (all of which was done -and procured by and with the consent and at the instance of the defendant as -aforesaid) ; and plaintiffs aver that due and legal notice of said re-sale of the said lands, was-given as required by law for su-ch purposes; that said lands were again offered for -sale by said administrators, by virtue of and under the order and -decree of the probate -court as aforesaid, and that defendant had notice of all such orders, decrees, and notices, and at the next sale -of said lands as aforesaid on, to-wit, the fourth day of November, 1889, the -defendant again became the highest, best and last bidder for said lands for which he had bid as heretofore alleged at said first sale, and the said lands were knocked off to him as the purchaser thereof, but at a much less price therefor than at said first sale, to-wit, at the price of five dollars and thirty-five cents per acre, amounting in all to ten thousand, nine hundred and -fourteen dollars, being, to-wit, six thousand nine hundred and thirty-six -dollars less- than the amount of the bid -of defendant at said first sale; and plaintiffs allege that -defendant -complied with the tennsi of -said last -sale; that the same was reported back to said probate court by the administrators, and that a deed was ordered by said court to be made to the defendant conveying to him ■said lands, which was accordingly done as required by law, after the confirmation of said last sale by the said probate court and due and regular proceedings therein in reference thereto a® required by law. Plaintiffs further aver that the said lands 'were not resold after the first sale, namely, the sale made -on the thirty-first day of January, 1887, until the fourth day of November, 1889, by and with the consent of the defendant; and that- they aver that in consequence of defendant’s failure to Comply with the said bid at said first sale, as heretofore alleged, expenses and costs were incurred necessarily in and about the making and conduct of resale of said property under the order of said probate court as aforesaid, to the amount of, to-wit, five hundred dollars. Wherefore, plaintiffs claim of defendant the said sum of $7,436, composed of the sum of $6,936, which is the difference in price at which the said lands sold at the first sale, and the price at which they sold at the said last sale, and the sum of $500, which was the expense of making and conducting such resale, together with the interest on each of said several sums from, 'to-wit, the thirty-first day of January, 1887.”
    The defendant moved to- strike out the portions of the eighth and seventeenth count® which are within the parentheses, upon the ground that they were irrelevant and immaterial to the case as made by the other portions -of the 'Complaint. Each of these motions- was granted, and to each of these rulings the plaintiffs separately excepted.
    After such portions of the eighth and seventeenth counts were stricken out, the defendant demurred to each of said counts upon the following grounds: 1. That it is averred as a conclusion of the pleader that there was a failure by the purchaser at the first sale to give .sureties as required by law, and the facts in reference thereto are not set out . 2. It is not. averred that the purchaser had notice that the court held the sureties insufficient or that the purchaser had an opportunity, by proper notice given, to litigate the question as to whether or not the sureties furnished by him were sufficient. . The court sustained the demurrers to each of these counts, and to each of these rulings the plaintiffs separately excepted. Upon issue joined on the counts of the complaint to which demurrers were not -sustained, there were verdict and judgment for the defendant. The plaintiffs appeal, and assign as error the several rulings of the court upon the pleadings.
    
      . Euuison & Thompson,. Pettus & Pettus and Watts, Troy & 'Oaffey, for appellant.
    There was a sufficient averment of notice to tlie defendant contained in tlie several counts of the complaint. — Hoioison v. Oakley, 118 Ala. 241; Stoudenmire v. DeBardeleben, 85 Ala. 89;' Pat. Bank v. McDonnell, 92 Ala. 301; Code, § 3840.
    From the time jurisdiction was conferred on the probate court to decree the sale of lands of an estate for division, such sales required its confirmation and order for a deed before a deed could be made. The court retained jurisdiction and the cauisie remained in fieri until the administrators were ordered to make a deed. Wallace v. Hall, 19 Ala. 367, and cases cited; Crwikshank r. Luttrell, 67 Ala. 322, and cases cited; Doe v. Hardy, 52 Ala. 291.
    Not only is the whole matter one which remains in fieri until the administrator® are ordered to make a deed, but it is one of a class of which the probate court bad plenary jurisdiction. — Perkins v. Winter, 7 Ala. 864.
    Sales of land for division in the probate court are judicial sales, and governed by the general principles applicable to judicial sales. — Crwikshank v. Luttrell, 67 Ala. 321-2, and cases cited; Perkins v. Winter, 7 Ala. 868; Hutton v. Williams, 35 Ala. 517; Lindsay v. Cooper, 94 Ala. 178; 12 Ency. PL & Pa?., 7 and 8; Worthington 'r. McBoberts, 9 Ala. 297; Poland v. Barrett, 122 Mo. 181; 43 Am. St. Eep. 572.
    'The purchaser at a judicial sale from the time of the purchaser becomes a party to the cause and remains so until every step is taken to complete his title, and he is entitled to litigate every question arising affecting tlie title; he ha® the right to enforce in the cause his right to the title, and to object to every step sought to be taken to deprive him of it. Judge Brickell practically recognized on the former appeal (pp. 240-1) that the purchaser became a party when stating that he had the right upon compliance with his bid to demand a confirmation of his sale. — Haralson v. George, 56 Ala. 297; Aderholt v. Henry, 82 Ala. 452; Penn. Mut. Co. v. Creighton, 51 Neb. 659; Mosby v. Hunt, '9 I-Ieisk. 675; Blackmore v. Barber, 2 Swann 242; Perky v. Hill, 16 Tux. 382; Blossom v. R. R. Co., 1 Wall. 655; Hughes v. khoope, 88 Kv. 257; Oriel v. Randolph, 108 Ala. 604. This rule is specially applicable to probate court sales .of landsi of a decedent, because the proceeding is in rem. — Friedman v. Bhamhlin, 117 Ala. 454; Perkins v. 'Winter, 7 Ala. 864; Pettus v. McOlannahan, 52 Ala. 55; Wyman v. Campbell, 6 Porter 232.
    Logan & VandeGraaff, contra,
    
    cited Howison v. Oakley, 119 Ala. 241.
   DOWDELL, J.-

Some of the questions presented on the present appeal were determined and settled on a former appeal in this case in a well considered opinion by Brickbel, C. J. — Howison v. Oakley et al., 118 Ala. 215. We see no reason for departing from what was there decided,and, therefore, adhere to the principles laid down in that opinion. In what we may have to say on the present appeal, we do not wish or intend to repeat what was said on the former appeal further than is proper and necessary, owing to the changes made in the present- record by amendments of the pleading since the remandment of the cause under the first appeal. All that was. said in regard to. the necessary averments of notice on the former appeal, we here approve and reiterate. Since the remandment of the cause, the complainants have attempted by amendments of the various counts of the complaint to conform to what was heretofore said as to the necessary averments of notice to the purchaser at the sale of the subsequent proceedings of the court in ordering a resale of the lands. The question now is whether the counts as amended sufficiently aver notice.

These amendments are substantially to the effect that, “defendant was notified that the administrators would report his. sureties as insufficient and worthless to the court;” that, “defendant was notified that the court would not accept said worthless sureties.”

The object and purpose of notice to defendant is to give him his day in court, and to that end the opportunity of a hearing upon any and all questions affecting lii-s i-ig'lits and interests, -and to this end he should he apprised of a definite time and place of such hearing. It needs no argument to demonstrate that the notice averred in the -amended -counts was wholly insufficient to this end. A mere declaration by the administrators of what they intended to report to the court is not sufficient notice to the defendant of a day for -a hearing in court, and construing the pleading under the familiar rule, against the pleader, the averment that the defendant- was notified that the court would not accept the sureties given by him was nothing more than a speculation as to the future decree of the court. We feel, therefore, constrained to hold that the averments of notice- as contained in the amended counts are still insufficient.

Counsel for appellant -seem to think that the doctrine laid down in the opinion on the former appeal in this case iis in conflict with the decision in the ca-se of Griel v. Randolph, 108 Ala. 604. Upon a careful review of the two cases, we cannot agree that there exists any -conflict between them. The facts in. the two -cases are essentially different. The principles laid down in Griel v. Randolph were approved and reaffirmed on the former appeal in this case. In the former ease, the purchaser made no attempt whatever to comply with the terms of the sale and his bid, and wholly defaulted. In -such eaisie it was held that by the failure and the default lie sent his dereliction into -court to be dealt Avith as legally might, -and Avas, therefore, not entitled to notice of the -court’® action in setting aside the sale -and ordering a resale. In the present case, liOAvever, the facts disclosed by the averments in some of the counts of the amended co-m-plaint ish-OAV that the- purchaser did not wholly fail and default, but on the -contrary executed his notes with sureties, which the administrators refused to accept as being in -compliance with the terms of the -sale, because of the insolvency o-f the sureties. And the question upon the report and hearing wa-s as to the sufficiency of the surety, AAflth the consequent right of the purchaser, after a determination by the c-ourt of their insufficiency, to 'Comply with the terms of the sale and his bid by giving -other -and sufficient surety.

There are other questions, however, presented on this appeal which were not presented and considered on the former appeal. After the remandment of the cause, as stated above, amendments of various counts were made, to which the defendant filed motions to strike certain parts and also demurrers. A motion was made to strike portions of the 8th count relating to the ineffectual attempt of the defendant to comply with the terms of the sale and his bid in that he gave his notes with insufficient 'sureties, and also as to that part relating to averments of notice of the intention of the administrators to report the insufficiency of such 'sureties, which said motion was sustained by the court. And after sustaining the motion, a demurrer by the defendant was filed to the count as it then stood. Eliminating from the 8th count the portions stricken on motion of the defendant, as this count then stood, when the demurrer wras interposed, the averments were not of an ineffectual attempt to comply with the terms of the sale, but a total failure and default on the part of the defendant without any effort whatever to comply, thus leaving the count with averments of a substantial cause of action under the principles laid down in Griel v. Randolph, supra. As the count then stood, no averment of notice was necessary to the defendant, and the court erred in sustaining the demurrer.

' Again, in addition to the amendments above referred to, which were made to the several counts since the remandment of the cause, the complaint was likewise amended bjr the addition of several other counts, among which we need only consider the 17th count, to which the argument of counsel for appellant is specially directed. This count presents the case in a wholly different phase from that which was presented on the former appeal. This count contains averments of fraud on the part of the defendant in bidding at said sale. It is averred that he never intended to comply with the terms of the sale and his bid when he made the same; that he well knew that the sureties on the notes which he offered were wholly insolvent and that he procured and gave, the same with a purpose and intention on his part of preventing the confirmation by the court of the sale; and that all of this was done and such means were so employed by the defendant in order to-compel a resale whereby he might be enabled to purchase these identical lands for a greatly less price. If these averments he true, then it is clear that the defendant could not stand upon any higher or better ground than one who makes no effort to comply with his bid hut wholly defaults. If guilty of fraud, as averred in the complaint, he has no rights in the premises to be protected. The service of notice to appear in court to show cause why his purchase should not1 he confirmed and a resale should not be ordered, under such, state of facts, would he wholly unavailing, since the fraud averred was made up in part of a purpose and intention on the part of the bidder to defeat a confirmation of the sale. The intervening fraud dispensed with the necessity of notice, and it became the duty of the court to order a resale at the risk of such bidder. The court, we think, erred in striking from the 17th count these averments as to fraud, and in sustaining the demurrer to isiaid count. What we have said above, in connection with what was said on the former appeal, we deem sufficient for the purpose of another trial without consideration of the assignments of error in detail; especially since some of them raise questions which are practically nothing more than an application for a rehearing upon some of the questions decided upon the former appeal.

For the errors pointed out, the judgment of the court below will be reversed and the cause remanded..

Reversed and remanded.  