84 Ala. 325 | Ala. | 1887
— Three years after the bill and answer thereto were filed, the defendants applied to the court to file a supplemental answer, in which they alleged, that the matter of litigation had been compromised by the payment to the solicitors of complainant of one-half of the amount claimed, with the accrued interest, and to the register of the court of one-half of the costs of the suit, and that it was understood and agreed, that on such payments being made the cause was settled and the bill should be dismissed. The chancellor refused the application on the objection of the complainant. Neither the grounds of the objection, nor the reasons of the chancellor are disclosed by the record, nor are any presented by the counsel in argument.
Evidently the parties had the right to compromise the suit, and such compromises of litigation are favored by the law. When a pending suit is compromised, unless it is brought to the attention of the court before a final decree, the parties will be concluded and estopped from setting up the compromise thereafter. A supplemental answer in the nature of a plea^tis darrein continuance at law, is the proper mode to bring the compromise and settlement before the court, on which to try the issue thus presented. There may have been sufficient reasons for refusing the application, but if so, they are not made known by the record, and we must determine the matter as presented before us. The chancellor should have allowed the defendants an opportunity to set up the compromise and settlement against the further maintenance of the suit, and should have tried the issue, and determined whether the compromise was such on the part of the trustee, as the court would approve, before, hearing the case on the merits.
As the decree must be reversed for this reason, we will not consider the merits of the controversy, except to remark that the allegations of the bill are insufficient to show that the trust fund was received by the defendant, Ann May, or that she became trustee, or that the property belonging to the estate of Stephen Wedgworth was charged with the trust. The bill fails to show, that any liability was imposed on the defendants, other than was imposed by any
Reversed and remanded.
