HARALSON, J.
1. There was no error in excusing the juror, Westbrook, on the ground that he was first cousin to the defendant’s son-in-law. It is a duty of the trial court, as far as it can be done consistently, to see that fair and impartial trials are had, and may, to that end, of its own motion, reject a juror summoned, if it appears, under the circumstances, he is an unsuitable
*259person to serve. A duty thus exercised, not arbitrarily, but apparently for good purposes in the interest of justice, will not be reviewed. — The State v. Marshall, 8 Ala. 302; Fariss v. The Sate, 85 Ala. 4; Griffin v. The State, 90 Ala. 599.
2. The plaintiffs demurred to the defendant’s plea of res adjudicata, on the ground, among others, that the former action was one in the nature of an action in ejectment, and the present action was one o'f the same nature.
A judgment in ejectment was never final at common law ; either party failing, might bring a new action, and the former judgment was not a bar to the last suit. This rule has been changed by statute in this State, to the extent, that two judgments in favor of defendant, between the same parties, in which the same title is put in issue, is a bar to any action for fhe recovery of the land, or any part thereof between the same parties or their privies, founded on the.same title. — Code of 1886, §2714; Code of 1896, § 1554; Winston v. Hodges, 102 Ala. 308; Morgan v. Lehman, Durr & Co., 92 Ala. 440; Camp v. Forrest, 13 Ala. 117; Adams on Ejectment, 351. This cause seems to fall within this rule. The first action was for the same land, and between the same parties as in the present suit, and the verdict and judgment were for the defendant. The former was no bar to the present action. If the jury found in the foz’mer suit, that the mortgage had been paid, that fact would not, more than any other finding under the general issue, which was pleaded also, bar the plaintiffs’ right to bring another action for the land.
3. The defendant in the present action, as in the former one, pleaded that the suit was based on a mortgage on said lands by defendant to plaintiffs, and that the same was paid and fully discliai-ged before the bringing of this suit. The plaintiffs replied to this plea, in substance, that they were not suing as mortgagees, but that they claimed title directly by a deed from Wzn. Cunninghame ; that the mortgage mentioned in the plea had been foreclosed under the power of sale contained therein, and a deed was executed to AVm. Cunninghame, the purchaser at said sale, on the 21st of August, 1893 ; that said Cunninghame, the purchaser at said sale, executed a good and sufficient deed, and conveyed to *260plaintiffs the premises sued for, on, to-wit, the 28th of August, 1893, and that this suit was brought after the execution of both of said deeds.
The defendant did not demur to this replication, and test its sufficiency thereby ; but moved to strike it out, because insufficient in law, and was no answer to the plea. The court very properly overruled the motion to strike. The replication was framed, and intended to set up, that the mortgage having been foreclosed under the power, and the lands having been purchased by Cunninghame, to whom a conveyance was made by the mortgagees, and Cunninghame afterwards having conveyed the lands to plaintiffs, the plaintiffs by virtue of such conveyances, did not become the assignees of the mortgage, but the owners of the land, to the extent that the mortgagor had title thereto ; and that they sued in this action, not as mortgagees, or as' assignees of the mortgagees, but as the owners of the land. — Matkin v. Marx, 96 Ala. 501.
Granting that said replication was defective — a question we need not decide — yet it was not frivolous on its face, and its sufficiency should have been tested by demurrer, and not by motion to strike it from the file. Powell v. Crawford, 110 Ala. 295; Lindsay v. Morris, 100 Ala. 547; Matkin v. Marx, supra.
4. The defendant rejoined to this replication, that there was a mortgage executed by defendant to plaintiffs on the land in suit, and that under a sale on foreclosure of said mortgage, Vm. Cunninghame was only a nominal purchaser, and no consideration was paid by him for said lands, and that he only bought them for the purpose of reconveying them to the plaintiffs.
The court properly sustained the motion to strike this rejoinder. The fact that Cunninghame was the purchaser and a mere conduit of title from the mortgagees to him and back to themselves, after the mortgage was foreclosed, did not operate as a mere assignment of the mortgage ; but it did operate to convey to plaintiffs the legal title to the land, by which they became the owners of the property, and on which they might maintain ejectment.
5. The case was tried on issue joined on the plea of not guilty, and on plaintiffs’ replication to defendant’s *261plea of payment. The facts set up in this replication were precisely proved. The defendant in his rejoinder to plaintiffs’ replication to the plea of payment, admitted the foreclosure, and the execution of the deed from the mortgagees to Cunninghame, and from him back to them. By the agreement of facts between the parties found in the transcript, it was admitted that the foreclosure sale was after default in the mortgage; that the mortgage which was foreclosed, contained astipulation, “that in case of a sale of said lands, Mayer Bros., [the plaintiffs] their agent, attorney or assignees may bid thereat, and become the purchasers, the same as if they were not parties to this instrument; ” and that the conveyance of said lands to plaintiffs by said Cunninghame, after his purchase at foreclosure sale, and the execution of the deed by plaintiffs as mortgagees after foreclosure to him, contained the statutory words, “grant, bargain, sell and convey to said Mayer Bros.”, which evidenced a conveyance of the legal title to said lands after foreclosure, and not a mere assignment of the mortgage. The recitals in Cunninghame’s deed as to the foreclosure and regularity of the sale, are to be taken as prima facie true. — Naugher v. Sparks, 110 Ala. 572.
6. There was no error in excluding the deed offered by defendant from F. A. Royal to the lands in suit to Carrol Williamson and herself, executed on the 7th of March, 1870. It was irrelevant and illegal evidence as to the issues in the cause. The later mortgage of "defendant to plaintiff, its foreclosure and the conveyances following, had the effect to transfer to plaintiffs the title to whatever interests she had in the lands.
7. It is objected that the general charge should not have been given for the plaintiffs, on the ground that the lands mentioned in the mortgage were described by metes and bounds, and in the complaint by land office numbers. But, it is submitted, the evidence tended to show without conflict that the lands sued for were the same as those thus differently described in the mortgage — the two descriptions not being different in substance. Besides, in defendant’s rejoinder to plaintiffs’ replication, he admits that the lands sued for are the same as those described in the mortgage.
We find no error in the rulings of the court below, of which defendant can complain.
Affirmed,