41 So. 840 | Ala. | 1906
— The defendant Maddox in- the third plea admitted the possession of the land, ahcl when this was done the only plea, open to him ivas the
Plea No. 4, of Houston Price, was in effect a disclaimer as to him, and as provided by section 1533 of the code of 1896. Said section permits the defendant to disclaim possession, which practically assimilates the common-law plea of non tenure. The authorities seem to be in conflict as to whether or not it should be considered a plea in abatement. But our court seems to have established a rule as to the effect of a disclaimer, to which we adhere, as it has become stare decises. If the plaintiff takes issue on the disclaimer and succeeds in proving same, he not only recovers the land, but is entitled to a judgment- for cost and damages. If the plaintiff does not take issue on the disclaimer, he can take judgment on the disclaimer for the land, but without cost or damages against the defendant.' So it would .seem that a disclaimer- neither abates the action nor bars the plaintiffs’ right to recover the land. It simply relates to a personal judgment against the defendant. Our court did hold in the case of Morris v. Beebe, 54 Ala. 300, that the defendant could plead non tenure and defeat a recovery. That case was decided before we had a statutory disclaimer, which appears in the code of 1896 and before the promulgation of the rule of this court in reference 'thereto'. The plea of non tenure and
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.