113 So. 237 | Ala. | 1927
This appeal is from a decree sustaining appellee's demurrer to appellant's amended cross-bill. Both the parties to this appeal were made defendants in the original cause. May v. Lowery et al. This court's consideration of the original bill is shown in Lowery v. May,
Appellee had conveyed to appellant. By his cross-bill appellant seeks to hold appellee responsible on the latter's warranty of title for the sum in which under the decree appellant must account to May, complainant in the original bill, and for the loss suffered by reason of the injunction which limited appellant's right to timber more narrowly than did the conveyance from appellee to appellant.
The connection between the relief sought in the cross-bill and that which has now been decreed under the original bill in agreement with its prayer is supposed to subsist in the fact that the relief sought in the cross-bill is founded on the warranty of appellee's deed to appellant, which the original complainant found it necessary to plead and prove. But the deed from appellee to appellant in this cause was introduced into the original cause, not for any effect of the covenant, but merely to show that through it the present appellant had notice of the stipulation against the cutting of trees beyond specified limits as to size of trees and times of cutting, and by which, in consequence, he was bound. May v. Lowery, supra. It must be noted that the original complainant, May, is in no otherwise interested in the controversy between the parties to this appeal, defendants both in the original cause. It is of no consequence to original complainant whether or not one defendant should answer to the other on any account; and, so far as the record discloses, appellant's claim is purely legal. A cross-bill is defensive in its nature and purpose. If its purpose be not to defeat a recovery by the original complainant in whole or part, or in some respect to modify the relief sought by the original bill, it is not germane to the original bill. Tutwiler v. Dunlap,
The decree sustaining the demurrer to the amended cross-bill is affirmed.
GARDNER, BOULDIN, and BROWN, JJ., concur. *366