75 Ala. 461 | Ala. | 1883
The bills, original and amended, are fíled to enforce the lien of a vendor on lands for the payment of the purchase-money. The cause was before the court at a former term, on appeal from a decree of the chancellor overruling a demurrer to the original bill, assigning as a cause that by the bill it was affirmatively shown the contract, or agreement of the purchaser to pay the purchase-money, was within the statute of frauds.—Phillips v. Adams, 70 Ala. 373. The decree was reversed,' and the cause remanded ; and in the court of chancery the amended bill was filed, alleging, in addition to the facts stated in the original bill (the making of the contract by the purchaser verbally, and that under it he was let into possession), the contemporaneous part payment of the purchase-money. Upon a final hearing, the bill was dismissed, upon the specific ground, that as more than twenty years had elapsed after the purchase-money was due and payable, before the institution of the suit to enforce the lien, during which period no recognition or admission of the debt by the purchaser was shown, the demand was stale, and incapable of enforcement. The hypothesis of the decree, however correct in point of law, is untrue in point of fact, if the lapse of time is to be computed from the day the purchase-money was payable to the filing of the original bill; but it is true, if the time is to be computed to the filing of the amended bill, and the filing of the original bill did not arrest or interrupt its running.
The rule is general, in a court of equity, that an original and amended bill are to be regarded simply as an entire bill, constituting in fact but one record. So far as the equity of the bill is iuvolved, the amended bill has relation to the commencement of suit by the filing of the original bill.—Blackwell v. Blackwell, 33 Ala. 57; Crews v. Threadgill, 35 Ala. 334; Cain v. Gimon, 36 Ala. 168. This is a fiction of law, intended
The amended bill introduced no new matter or claim, not asserted in the original bill, and which was not within the existing lis pendens. There is no variation of the title of the
The questions suggested by counsel, as to the admissibility or effect of the evidence, do not seem to have been considered by the chancellor, are not probably within the assignments of error, and we are not inclined to pass upon them.
Let the decree be reversed, and the cause remanded.