58 Ala. 211 | Ala. | 1877
It is not now necessary to inquire whether the original bill presents a case within the cognizance of a court of equity, or whether the right and remedy of the complainant was not solely at law. The matter of a plea puis darrien continuance, at law, is often available in equity only by cross-bill, A matter of defense, arising after issue joined, as a release executed by the complainant to the defendant, can be introduced only by cross-bill. — Story’s Eq. PL § 393; Cochran v. Rison, 20 Ala. 463. The cross-bill disclosed that pending the suit, the complainant and her husband had, by deed executed and acknowledged in the form prescribed by the statute, conveyed the premises in controversy to the appellant, Esther. If this conveyance is valid, though it be conceded to the complainant there was equity in the original bill, its operation is. a release of the right involved.
In the answer to the cross-bill, (and the allegation is supported by the evidence of the complainant,) it is averred she was deceived into the execution of the conveyance by the fraudulent misrepresentations of her husband, It is hot
The decree of the Chancellor must be reversed, and this court, proceeding to render the decree which ought to have been rendered, doth order, adjudge and decree, that the deed of the premises in controversy, made by the complainant Henrietta T. Dade and her husband Morris H. Dade, to Esther Moses, bearing date 17th day of July, 1871, is valid and operative, and is a bar to the further continuance of this suit. It is further ordered, adjudged and decreed, that the defendant, J. Clifton Moses, pay the costs of the original suit, to be taxed by the register, which had accrued prior "to the 17th day of July, 1871,