James v. Tait

| Ala. | Jan 15, 1839

ORMOND, J.

— It appears from the bill of" exceptions, that the bond from Newman to the plaintiff in'error, was offered in evidence, as establishing a title to the land in controversy, in the plaintiff in error. It appears to be a promise on the part of Newman, to'make a title in fee simple to the land, or some portion of it, to the plaintiff in error, at some future time, provided he could obtain the passage of an act- of Congress, authorising him so to do; and that failing to obtain such act, he would indemnify him for his advance of money, by a mortgage on a negro woman.

It is hot necessary to enquire, whether a Court of Chancery could have, under any circumstances, enforced a specific performance of this agreement; it was clearly unavailing; for the purpose for which it was offered in evidence, and was, therefore, properly rejected.— Whether it could have had the effect to show that the possession of the plaintiff in error was adverse to the defendants, it is not necessary now to discuss, as it does not appear to have been offered for that purpose in the court below.

The objection to the form of the action cannot prevail. In the case of Thrash vs. Johnson, (6 Porter’s Rep. 458,) the same objection was made as in this case, and overruled by the court. In that case, as in this, the action was trespass quare clausum fregit.

It cannot be assigned as error, that the court permitted evidence to be introduced by the defendant in error, after the close of the plaintiffs’ testimony. The conduct of the cause, in thó court below, is entrusted to the discretion of the presiding judge. We cannot presume that he has exercised that discretion improperly; nor is it a matter that we can revise,- but so far as we can judge of the decision, from the account in the bill of exceptions, it appears to have been entirely correct.

The assignment, that Peyton Downey was not made a party, is not sustained by the record. The statute provides, that when a feme sole plaintiff marries pending the suit, tlie husband may make himself a party to the suit, by motion. It appears from the record, that a suggestion was made, that said Downey had intermarried with Martha Weatherford, one of the plaintiffs, whereupon a scire facias issued to him, to show cause why he should not be made a party to the suit. This was an unnecessary proceeding, but must be considered as equivalent to a motion, especially as he is named as one of the plaintiffs, in all the subsequent proceedings of the cause.

No advantage can -now be taken of the entry on the record, that the proceedings were at one time stayed by injunction ; as the parties went to trial afterwards, without objection, we must presume that the injunction whs dissolved.

All the remaining objections, except those relating to the verdict and judgment,' are answered by the decision of this court, in the case of Sturdevant vs. Murreirs heirs, in which this court, under the influence of a statute of this State, held, that no objection can be taken to the declaration, after the plea of not guilty filed.

The court say, “ our conclusiouis, that, in the action of trespass to try title, the declaration should describe the land in controversy, with so much particularity and precision, as will inform the defendant what he is to defend against, and the court, for what it is called on to render judgment. But, in the present case, the plaintiff in error cannot avail himself of an objection to the declaration ; he is foreclosed, by having pleaded not guilty in the Circuit court. The statute is express to the point” —(Aik. Dig. sec. 46, p. 266.)

If no objection can be taken, after the plea of not guilty to the declaration, it necessarily follows, that none can be made to the endorsement on the writ. The statute does not require the plaintiff to do more than to endorse on the writ, “ that the action is brought as well to try titles, as to recover damagesthe rest may, therefore, be rejected as surplusage, especially after the plea of not guilty, to the declaration, is filed.

The objection to the verdict and judgment .cannot be sustained. The verdict of the jury, is responsive to the issue, and. the judgment of the court is for the land described in the third count of the declaration. It is insisted, also, that the word “ tenement,” employed by the court in rendering judgment, is not sufficient to entitle the defendants in error to recover lands. Without conceding that the objection is good, it is sufficient, that, in this case, a judgment is rendered for the lands claimed in the declaration, by the appropriate description, according to the United States’ survey; and this certain and accurate description cannot be vitiated by the use of the word tenement, in addition, even if it were of doubtful import, standing alone.

There is no error in the judgment of the court below, and it is hereby affirmed.