they utterly failed to do. It is true, it was shown that a portion of the cotton alleged to have been converted or taken by defendant, was received by him in November, but on what day of that month is not shown. Non constat it was received by him on the first day: Alabama Min. Land Co. v. State, 126 Ala. 90, 28 South. 668. If so, the mortgagor had not made default since he was entitled to the whole of that day in which to discharge his debt. So, then, the plaintiffs having failed to discharge the burden of proof that was upon them, the defendant was entitled to have the affirmative charge requested by him given, and this, too, without regard to which of them had the best claim to the property.

It may be that upon another trial, the plaintiffs may prove the conversion or taking by defendant of some of the property after the law day of their mortgages. In that event, the contest will be as to which of them has the superior title to the property. Both claim to have derived their title from one J. W. Dixon, and both by virtue of mortgages executed by him. The defendant acquired his mortgage on December 10, 1900, which was filed for record on the fourteenth day of the same month. The signature to that mortgage is "A. W. Dixon," although it was in fact executed by "J. W." The plaintiffs' mortgages were executed in the spring of 1901 and executed by Dixon in his true name. It is not contended that the plaintiffs had actual notice of the defendant's mortgage 472 or that they are not purchasers for value. The question is, Are they chargeable with constructive notice of the mortgage held by defendant by reason of its recordation?

"Conveyances of personal property to secure debts or to provide indemnity are inoperative against creditors and purchasers without notice until recorded," etc.: Code, sec. 1009. And the recording of such a conveyance in the proper office operates as notice of its contents: Code, sec. 991.

It may be, and doubtless is, true that the mortgage executed by J. W. Dixon to the defendant under the assumed name of A. W. Dixon is a valid conveyance inter partes, but it does not follow from this that the plaintiffs, who subsequently purchased it from Dixon under his true name, are chargeable with constructive notice of the mortgage which was recorded correctly. In other words, the record of a mortgage executed in the name of A. W. Dixon is not notice that J. W. Dixon executed it. The names are as entirely different as are the names of J. W. Dixon and J. W. Smith. Had Dixon assumed the name of J.

W. Smith and executed the mortgage, signing that name instead of his true name, it could hardly be doubted, although he bound himself, that the record of it would not have operated as notice to the plaintiffs: Mackey v. Cole, 79 Wis. 426, 24 Am. St. Rep. 728, 48 N. W. 520; Phillips v. McKaig, 36 Neb. 853, 55 N. W. 259.

The case of Fincher v. Hanegan, 59 Ark. 151, 26 S. W. 821, cited by appellant's counsel, only involved a mistake in the initial letter of the middle name of the mortgagor. In that case the mortgagor executed the first mortgage by his true Christian name and surname. The court held that the middle letter was immaterial as the law recognizes but one Christian name. It is, therefore, not an authority upon the question here involved, if abstractly sound, of which we express no opinion.

The mortgage offered in evidence by defendant was properly excluded. Nor did the court commit an error in excluding the fact that defendant sold the mule to Dixon, and that the mortgage held by him was given for the purchase price of the mule. The mortgage being inoperative as against the plaintiffs, it was immaterial 473 how or from whom Dixon acquired the mule. He had the title to it, and when he executed the mortgages to the plaintiffs, they, being bona fide purchasers for value, acquired the title and are entitled to recover in the action if the conversion or taking by defendant took place after the law day of their mortgages. In making this statement, we have not overlooked the contention that the plaintiff's agent consented to the taking of the property by defendant. We do not construe the testimony as showing such an assent on the part of the agent. But even if it is susceptible of such an inference, he was under the testimony, clearly without authority to make it so as to bind his principals. He was a mere collecting agent, and could relinquish no rights of theirs or recognize any adverse claim without their express authority: Bynum v. Southern Pump etc. Co., 63 Ala. 462; Mobile etc. R. R. Co. v. Cogsbill, 85 Ala. 456, 5 South. 188.

Reversed and remanded.

The Defective Recording of legal instruments is the subject of a recent monographic note to Koch v. West, 96 Am. St. Rep. 597-406. The record of a chattel mortgage executed in an assumed and fictitious name does not impart notice to a purchaser who finds the mortgagor in possession: Mackey v. Cole, 79 Wis. 426, 24 Am. St. Rep. 728, 48 N. W. 520.

That the Mortgagee of chattels, in a proper case, may maintain an action for their conversion, see the monographic notes to Bolling

v. Kirby, 24 Am. St. Rep. 816; St. Mary's Machine Co. v. National Supply Co., 96 Am. St. Rep. 691. A second mortgagee of chattels, who is neither in actual possession nor entitled to such possession, cannot sue for their conversion: Baker v. Seavey, 163 Mass. 522, 47 Am. St. Rep. 475, 40 N. E. 863. In Kennett v. Peters, 54 Kan. 119, 45 Am. St. Rep. 274, 37 Pac. 999, it is held that a chattel mortgagee does not become the absolute owner upon condition broken, nor become entitled to immediate possession unconditionally; and, therefore, he cannot maintain trover for the conversion of the property, without alleging his special ownership and interest therein at the time of the conversion.

ROBERTS v. MATHEWS.

[137 Ala. 523, 34 South. 624.]

NUISANCE, Public-Right of Private Citizen to Abate.-A private individual who alleges upon sufficient facts, that he has suffered a special injury from a public nuisance which is real and distinct from that suffered by him in common with the public at large, and is so continuous in its nature that the legal remedy for damages is inadequate, is entitled to maintain suit to abate such nuisance. (p. 57.)

DEDICATION-Streets.-If a person plats land, setting apart certain portions thereof as streets, and sells lots with reference to such plat, he irrevocably dedicates the land designated thereon as streets, squares or commons, to the public for public uses. (p. 57.)

DEDICATION-Streets--School Land-Nuisance. If school commissioners are authorized to survey, plat, and sell, state school lands, and lots are sold with reference to such plat when made, there is an irrevocable dedication to the public of streets, alleys, and public squares laid out on such plat, and the subsequent obstruction thereof constitutes a public nuisance which may be abated by a lot owner who is especially injured thereby. (p. 58.)

Bill to abate, as a public nuisance, the obstruction of streets and a public square as laid down on a plat of a town, and with reference to which the complainant purchased certain lots. He alleged that, by reason of the obstruction of such streets and square, the value of his lots was materially decreased, and that there was special injury to him by reason of the fact that he intended and desired to build a hotel on his property, and that, without the unobstructed use of such streets and the removal of the obstruction from such square, his property would be practically without value to him. Decree overruling a motion to dismiss for want of equity and overruling a demurrer to the bill. The defendants appealed.

Blackwell & Agee and Knox, Dixon & Burr, for the appel

lant.

E. H. Dryer, for the appellee.

528 DOWDELL, J. The bill in this case was filed to abate an alleged public nuisance. That courts of equity have jurisdiction in such matters is a proposition not open to question. The averments of the bill as to ownership and special damage are sufficient to authorize its maintenance by the complainant individually: Whaley v. Wilson, 112 Ala. 627, 20 South. 922; 9 Am. & Eng. Ency. of Law, 2d ed., 63, 64.

It is well settled by decisions of this court, that where a person plats land and lays off lots according to such plat, and makes sale of one or more of such lots with reference thereto, he irrevocably dedicates the land designated thereon as streets and alleys, highways, squares and commons to the public, for public uses: Western Ry. of Ala. v. Alabama Grand Trunk Ry. Co., 96 Ala. 278, 11 South. 483; Harn v. Dadeville, 100 Ala. 202, 14 South. 9; Sherer v. Jasper, 93 Ala. 530, 9 South. 584; Reed v. Mayor etc. of Birmingham, 92 Ala. 348, 9 South. 161; Evans v. Savannah etc. R. R. Co., 90 Ala. 54, 7 South. 758; City of Demopolis v. Webb, 87 Ala. 659, 6 South. 408; Webb v. City of Demopolis, 95 Ala. 116, 13 South. 289; Douglass v. Montgomery, 118 Ala. 607, 24 South. 745; Avondale Land Co. v. Avondale, 111 Ala. 527, 21 South. 318.

The land in question, which was surveyed and platted, and laid off in lots, was school land, being the sixteenth section of the township, and was so surveyed and platted for the purpose of sale by the school commissioners in 1834, under the act of January 15, 1828, and acts amendatory thereof. The contention of the appellants is, that the school commissioners, in the survey, platting and sale of said land, were without authority to dedicate any portion of the same to public highways, or other public uses.

The sale of the sixteenth section by the township trustees or school commissioners, pursuant to said act, was held valid by this court, in Long v. Brown, 4 Ala. 622.

The act of January 15, 1828, and acts amendatory thereof (see Aiken's Digest, 378-383), gave the township 529 trustees, as commissioners, the authority "to cause the sections (sixteenth) so elected to be sold, to be surveyed in such manner as they may think will command the highest price for the same, in lots which will not exceed eighty acres each, and shall cause a fair plat of the same to be made out by the surveyor, and shall fix a maximum price upon such lot or part. . . . . And shall exhibit the same to any person wishing to examine the land before sale, and the said plat shall moreover be exhibited

to all persons wishing to examine the same on the day of sale.” Further provisions are also made relating to the condition of sale as to payment, etc.

The trustees or commissioners were the officers or agents of the state in the sale of the land. It was made their duty to cause the same to be surveyed and platted, and to be laid off in lots in such manner "as they may think" would command the highest price, the limitation in area of the lots being upward, not to exceed eight acres each. In this they were vested with a discretion, in the exercise of which, however, it was their duty to so divide the land into lots as to make it command the highest price. If the locality was suitable for a townsite, and by a survey, platting and laying off into town lots, the highest price for the land could thereby be obtained, we think the act not only conferred the authority on the trustees to so lay off the land into lots for sale, but imposed that duty. If they had such authority, then clearly they had the implied power and authority to make each and every lot accessible by a public highway, and to that end to make a dedication of such highways to the public.

By an act of Congress the Fort Dearborn reservation was directed to be sold by the Secretary of War. No special power was given to have the land surveyed into lots in such manner as he might think would command the highest price, as was given to the trustees in the case before us under the act of January 15, 1828, yet the secretary directed his surveyors to lay out a portion of the land into town lots and blocks, with streets, highways, alleys, etc., and a plat survey was made and lots 630 were sold with reference to such survey and plat. The supreme court of the United States held the same to be a valid dedication of such streets, alleys, highways, etc.: United States v. Illinois Cent. R. R. Co., 154 U. S. 225, 14 Sup. Ct. Rep. 1015.

Our conclusion is that the respondents' demurrer to the bill was not well taken, and the city court properly overruled the

same.

Affirmed.

Dedication of Property to a public use is discussed in the monographic note to State v. Trask, 27 Am. Dec. 559-570, and the recent cases of Thompson v. Maloney, 199 Ill. 276, 93 Am. St. Rep. 133, 65 N. E. 236; Kray v. Muggli, 84 Minn. 90, 87 Am. St. Rep. 332, 86 N. W. 882; Teasley v. Stanton, 136 Ala. 641, 96 Am. St. Rep. 88, 33 South. 823. As to the estoppel of a vendor of lots as against his grantees, to deny the dedication of strips of the tract for streets, Bee Prescott v. Edwards, 117 Cal. 298, 59 Am. St. Rep. 186, 49 Pac. 178.