Sivoly v. Scott

56 Ala. 555 | Ala. | 1876

STONE, J.

Neither the demurrer in this cause, nor the action of the court upon it, is shown in the pleadings, or in the judgment entry. They are only brought to our notice in the bill of exceptions. We have repeatedly held, that rulings on demurrer, when thus presented, will not be considered in this court. — Dill v. Petty, 53 Ala. 641.

2. In Cullum v. Branch Bank at Mobile, 4 Ala. 21, suit had been instituted on notes given in the purchase of lands. Title had been made to the purchaser, and he had not been evicted. It was pleaded in defense of the action at law, that the vendor had not title, and that in making the sale he had falsely and fraudulently represented that the title was in him, and that it was full and complete, &c. Judge Henry Goldthwaite, in delivering tbe opinion of tbe court, said: “ If the defense of fraud was permitted in this case, to avoid a recovery at law, there is nothing in the record to show that the contract has ever been rescinded, and therefore A. (tbe vendor) hereafter might be liable to an action on his warranty; or, in the case of a title subsequently acquired by him, be estopped by Ms covenant from asserting it.” In enumerating reasons why sucb defense should not be entertained in a law court, the opinion supposes tbe case of an eviction after the receipt of large rents or profits, and asks, “are these to remain unaccounted for, or must not the defense be denied,” &c. The court adds, “ This examination of principles and authorities leads us to the conclusion, that the defendant has no available defense at law.”

The same question came before this court in Hickson v. Lingold, 47 Ala. 449. Ch. J. Peck delivered tbe opinion of tbe court in that case, and ruled in harmony with the decision in the case of Cullum v. Br. Bank, supra.

This question, in various forms, has been so often before this court, that an attempt to collate the cases would swell this opinion unduly. Many of the decisions, both at law and in equity, are collected and somewhat classified, in the case of Kelly v. Allen, 34 Ala. 663. If the appellees have a defense in this case, the authorities collected on page 669 of that case will probably furnish a sufficient guide. It can not be made in the form attempted in tbis case. Tbe Circuit Court erred in the charge given, and in the refusal to charge as requested. — See Lett v. Brown, at present term.

The judgment is reversed, and the cause remanded.