Gaston v. State

88 Ala. 459 | Ala. | 1889

McCLELLAN, J.

The motion to strike out the bill of exceptions in this record must prevail. Judgment was entered on September 17th, 1889, and with it an order that thirty days be allowed the defendant in which to file a bill of exceptions. On October 15th it was ordered, that “the time for preparing a bill of exceptions by defendant is hereby extended for twenty days from this date." The bill of exceptions shows that it “was tendered and approved” on November 5th, 1889, beyond the time prescribed in the order of October 15th theretofore. The bill of exceptions, therefore, must be stricken from the record, and all assignments of ' error based on it will be disallowed. — Powell v. Sturdevant, 85 Ala. 243.

The action of the primary court in striking defendant’s plea in abatement from the files may be justified on either one of two grounds: (1.) The plea was not of matter of record, and was not verified as required by statute. — Code, § 2676; Hall v. Wallace, 25 Ala. 438. (2.) The plea, had it been properly verified, would have been clearly bad, in its assumption, or statement of law, that the State of Alabama is not authorized to maintain ejectment except in respect to sixteenth-section lands. The statute authorizes suits by the State in all cases where, under like circumstances, an action would lie between individuals. — Code, § 2573.

What is said last above applies also to defendant’s first assignment of demurrer, which proceeds on the idea that the State can not maintain the action of ejectment. The second assignment of demurrer to the complaint, setting up the alleged incapacity of the State to maintain ejectment for lands constituting the sixteenth .sections, which it holds in trust for the several townships of the State, is palpably untenable. Code, § 960, clause 4.

Actions by the State for the recovery of any real or personal property, and actions by or for the use of any township for the recovery of sixteenth-section or other school lands, by the express terms of the statute of limitations, may be brought any time within twenty years from the time the cause of action accrued. — Code, § 2613.

We are of opinion, that, title by adverse possession not being perfected against the trustees of the township, when the twenty years limitation was broadened so as in terms to embrace all suits for recovery of lands belonging to a township, it was competent for the legislature to invest other parties than the trustees with the right to maintain such suits in behalf of the township; and no defense could be made to suits instituted by parties thus invested with the right of action, which could not have been made to a suit prosecuted in the name of the trustees. The statute was a mere legislative change in the trustee authorized to sue, and could not operate to deny any substantial right of the oestuis que trust, or authorize any defense not before tenable.

The judgment of the Circuit Court is affirmed.