100 Ala. 610 | Ala. | 1892
1. The allegation of the bill as- to the ownership of the notes is, that they were made payable to the complainant, and nothing appearing to the contrary, the presumption is, they continued to be hers. Besides, her ownership of the notes she sues on, can not be put in issue without a plea denying her ownership of them, verified by affidavit.—Hooper v. Strahan, 71 Ala. 75; Bonner v. Young, 68 Ala. 35; Code, § 2770.
2. The second ground of demurrer is based on the lack of allegations which plainly appear on the face of the bill.
3. The land is described in the bill, as 12 acres situated in the S. W. corner of the S. E. quarter of S. 5, T. 6, E. 4, West, being 1,581£ chains, East and West, and 758J chains, North and South, in Morgan county, Alabama. A parellelogram of such dimensions contains considerably over 100,000 acres. The twelve acres, on which the lien is sought to be declared and enforced, is lost in bewildering uncertainty.
4. The foot-note to the original bill required the defendant to answer “all the allegations in the foregoing bill, in the paragraphs numbered from 1 to 5 inclusive.” This was a compliance with the 13th rule of chancery practice, and oath not having been waived, the answer was required to be sworn to.—McKenzie v. Baldridge, 49 Ala. 564; Code, § 3424. The objection taken to the bill that it did not conform to said rule of chancery practice, was without merit. After the demurrer on this ground, and before it was passed on, an amendment, by leave of court, was filed, waiving oath to the bill, and the demurrer as originally filed was not refiled, nor was any new demurrer filed to the bill as amended. If the bill had been defective in the alleged matter of form, without the amendment,—which is not the case,—and its defect had been cured by amendment, the former demurrer, not having been refiled, after amendment, was functus officio and could not be considered.— Volta v. Volta, 75 Ala. 555.
5. A bill filed by a woman need not show she is married or single. This bill shows complainant was a married woman, however, and that the notes sued on, were her separate estate, and alleges that on the 14th day of January, 1888, she conveyed the land mentioned in the bill to defendant, Jno. Paige, by a good and sufficient deed, in which her husband, P. M. Broadfoot joined, and which was duly acknowledged by herself and her husband.
All the grounds of demurrer, except the third,—the one having reference to the description of the land—were without merit, and as for them, the demurrer was properly overruled, but it should have been sustained, on account of the said.indefiniteness of description of the property on which the lien is sought to be enforced.
Reversed and remanded.
