Stouts Mountain Coal & Coke Co. v. Pollak, 70 So. 846

Stouts Mountain Coal & Coke Co. v. Pollak

70 So. 846 | Ala. | 1915

SOMERVILLE, J.

(1) The release of all claims and damages executed by the complainant, Poliak, in favor of the respondent company, as set forth in its plea and answer to the bill of complaint, is, without doubt, prima facie a complete bar to the relief sought by the bill. By the amendment to the bill the complainant recognized the existence of that release in the very terms set forth. He thereby necessarily assumed the burden of avoiding its prima facie legal effect by proof of the allegations incorporated in the bill, by amendment, for that purpose. The matter thus set up in avoidance of the release is: (1) That prior to the execution of the release complainant had deeded the leased land to one Steiner, and at the same time assigned to said Steiner all his rights growing out of the lease, and that, complainant being therefore not the owner of the rights here sued on when he executed that release, such rights were not affected thereby; (2) that by the assignment from said Steiner complainant was reinvested with the rights of action accruing to the lessor under the lease in question, before the institution of this suit; or (3) that the release was intended to coyer only a single and different transaction, not related to those in suit, and was fraudulently procured in the form exhibited.

*559(2) It appears from complainant’s note of testimony that no proof was offered as to the execution of either of the assignments exhibited by the bill, which were not self-proving, and hence it follows that complainant was not entitled to relief, whether because he fails to show that he was not the owner of the lease and its appurtenant rights when the release of damages was executed, or because he fails to show that he was reinstated with the relation and rights of lessor before he filed this bill, or because he fails in any way to show that the release did not discharge the obligations and liabilities here asserted.

(3, 4) If it be urged that the deeds of the land from complainant to Steiner, and from Steiner to complainant, were self-proving, it is nevertheless clear that these deeds did not, of themselves, affect the relations existing between complainant and re-' spondent — at least, not unless due notice of the sale and. grant was given to respondent. — Otis v. McMillan, 70 Ala. 46. The bill does not allege such notice to respondent, and proof thereof would not have been available, even if offered. Nor was any proof made as to the fraudulent procurement of the release by complainant. ¡

(5) The answer to the amendment portion of the bill denies all of the facts alleged therein; and, taking the admissions and denials of the answer as a whole, as the chancellor was bound to do, complainant was not entitled to the relief prayed. It may be true, as urged, that the answer, though sworn to, was not before the chancellor in its entirety as evidence, because it was not presented through the medium of a note of testimony by respondent. — Ch. Pr. Rule 76; Tatum v. Yahn, 130 Ala. 575, 29 South. 201. But it was in the record as a pleading, and its denials were necessarily to be considered in connection with its admissions.

We are clear in the conclusion that the decree in this cause was not rendered “according to the claim and proof,” as required on such submissions by Chancery Practice Rule 69, and must be reversed; and, exercising our discretion to the end that the issues between the parties may be fairly heard and justly determined, we remand the cause for further proceedings.

Reversed and remanded.

Anderson,. C. J., and Mayfield and Thom:as, JJ., concur.