S. R. Coleman, for appellant. A. H. Longino, for appellee.

If

CAMPBELL, C. J. The summons issued during the term of court, and returnable instanter, was a nullity, and did not confer jurisdiction on the court by virtue of its service. It was not amendable by virtue of section 2288 of the Code of 1880, for it was not conformable to law in its command. it had been returnable, as required by law, (section 1525, Code 1880,) and any matter required to be inserted was omitted, it would have been amendable; but it was in its frame and purpose violative of law, and good for nothing, without form, and void as a summons, and the person served was under no obligation to pay any attention to it, and had the right to have it vacated at any time on petition or motion, and it was so good for nothing as to be subject to collateral attack by anybody whenever it was brought into question. There must be an effort to conform to law to entitle to the claim of mere irregularity in process. The judgment refusing to vacate the judgment will be reversed, and in pursuance of the long-settled practice of this court, without any statute, the appellant will be held to be in court as a party to the suit for such further proceedings as may be had in the pending cause. Reversed and remanded.

FLY et al. v. KING, Sheriff. (Supreme Court of Mississippi. Dec. 18, 1893.) REVIEW ON APPEAL-OBJECTIONS NOT RAISED BELOW.

An objection that the suit was improperly brought in the name of the sheriff for the use of another cannot be raised for the first time on appeal, if a correct result was reached in the court below.

Appeal from circuit court, Tunica county; R. W. Williamson, Judge.

Action by T. O. King, as sheriff, for the use of another, against Fly & Hobson. Judgment for plaintiff. Defendants appeal. Affirmed.

St. John Waddell, Jas. R. Chalmers, and Johnston & Johnston, for appellants. F. A. Montgomery, Jr., for appellee.

COOPER, J. No objection was made in the court below to the prosecution of this suit in the name of King, the nominal plaintiff. A correct result having been reached, the judgment will not be reversed on the objection for the first time taken here. Elson v. Barrier, 56 Miss. 394. Judgment affirmed.

SCHARFF et al. v. FONDA, Sheriff. (Supreme Court of Mississippi. Dec. 18, 1893.)

RES JUDICATA.

After affirmance, on appeal, of a judgment directing the sheriff to pay the proceeds of a sale under attachment to the attaching V.140.no.11-0

creditor, no motion will lie, at the instance of subsequent attaching creditors, to have the sheriff pay such proceeds to them.

Appeal from circuit court, Tallahatchee county; R. W. Williamson, Judge.

Appeal by Scharff, Bernheimer & Co. from a judgment overruling their motion to have C. H. Fonda, sheriff, pay the proceeds of a sale under attachment to them. Affirmed.

S. R. Coleman, for appellants. Wm. C. McLean, for appellee.

WOODS, J. The question involved in the present appeal is res adjudicata. The very controversy now pressed by appellants, and the precise point now insisted upon before us, was decided adversely to appellants in Scharff v. Chaffe, 68 Miss. 641, 9 South. 897. The supposed superiority of appellants' lien was decided in that decision of this court, on the case made on that record by appellants, and the judgment of the lower court, condemning the property to sale to pay the debt of the appellee therein, was distinctly affirmed. The sheriff of Tallahatchee county, in compliance with the former judgment of the circuit court of that county, affirmed by us, paid the proceeds of the cotton to the successful parties. After the affirmance by this court of the former judgment in favor of Chaffe, Powell & West, and after the officer had paid the funds arising from the sale of the cotton in dispute to that firm,. appellants made their motion-the foundation of the present appeal-to have the sheriff apply the funds to the payment of their demand. Properly, the court below overruled this motion. The sheriff is not a party in interest. He is the mere custodian of thefund, and his connection with the controversy is purely nominal. It is really the same controversy between the same parties, and the sheriff is to be protected in yielding obedience to the judgment of the lower court, affirmed by the supreme court. Affirmed.

FINNEY v. SPEED et al. (Supreme Court of Mississippi. Nov. 20, 1893.) APPEAL-TIME OF TAKING-DISABILITY. 1. Where the record shows that appellant, at the time of suit, was non compos mentis, a plea in bar of the appeal must show the removal of the disability, and the subsequent lapse of the period for taking appeal.

2. The appeal of an insane person need not await the removal of his disability, and, if taken by his guardian or next friend, need not be within the time for appeals of sane persons.

Appeal from chancery court, Warren county; Claude Pintard, Chancellor.

Appeal by W. D. Finney, non compos mentis, against Frederick Speed, trustee, and others. On demurrer to plea in bar of the appeal. Demurrer sustained.

Gibson, Henry & Vollor and Southworth, Paxton & Stevens, for appellant. M. Marshall, for appellees.

CAMPBELL, C. J. A plea must be considered with reference to that which it professes to answer in order to determine as to its sufficiency. This plea is in bar of the appeal from a decree in a cause in which the appellant was shown by the bill and subsequent proceedings to be non compos mentis. In view of this, the plea is not good, because it does not aver the removal since of the disability existing when the decree was given, and the lapse of the requisite period to bar appeal after the removal of such disability, and before the appeal. If an infant were to appeal from a decree, and the record did not show, in conjunction with lapse of time of which the court would take notice, that the disability had been removed long enough before the appeal to bar it, it would devolve on the appellee, pleading in bar of the appeal, to aver the removal of the disa bility at such time as to show the appeal to be barred; and if a married woman appealed, and coverture was a disability, it would be necessary for the appellee, pleading the bar of the appeal by time, where the record showed coverture to exist when the judgment was given, and it did not appear to have ceased, to aver removal of the disability at such time as to bar the appeal. True, who claims to be within the exception of a statute must bring himself within it, but the cases put do not contravene this rule. The state of case existing, as shown by the record, at the time of judgment or decree appealed from, is presumed to continue, and still exist, unless the record and what is judicially taken notice of in connection with it show the contrary.

We cannot accept the view of counsel for the appellees to the effect that a non compos mentis cannot appeal until the removal of his disability, and that an appeal by his guardian or next friend must be taken within the time prescribed to bar appeals by those not under disability. To hold that no appeal can be had until removal of disability is to deny an appeal where there is never removal of the disability; and to hold that an appeal by guardian or next friend is not subject to the saving in favor of persons of unsound mind is to assume that the appeal is that of the guardian or next friend, whereas it is the appeal of the person of unsound mind, and the guardian or next friend is not a party in interest, but appears for the protection of the interest of the person whose interests are involved, because he is assumed to be incapable of suitably representing himself. The adjudications of this court as to the rights of infants to show cause against a decree, and to appeal from it, throw light on the question here involved, and suggest its true solution. Sledge v. Boone, 57 Miss. 222; Enochs v. Harrelson, Id. 465; McLemore v. Railroad Co., 58 Miss. 514; Vaughn v. Hudson, 59 Miss. 421. The suggestion that McLemore v. Railroad Co., 58 Miss. 514, is opposed to the view now held, is unfound

KELLAR et al. v. BULLINGTON. (Supreme Court of Alabama. April 27, 1893.) TRESPASS INJUNCTION-WHEN WILL LIE.

Injunction will not lie in favor of a complainant out of possession to restrain the remov al of stone from land of which defendants had possession under a claim of ownership when complainant obtained title thereto from the government, where the disputed question of title has not been adjudicated.

Appeal from chancery court, Colbert county; Thomas Cobbs, Chancellor.

Action by William H. Bullington against A. H. Kellar and another to enjoin defendants from removing stone from certain land, and to recover damages for stone removed. From a judgment for plaintiff, defendants appeal. Reversed.

L. B. Cooper and Roulhal & Nathan, for appellants. J. B. Moore, for appellee.

HEAD, J. On March 17, 1884, Arthur H. Kellar purchased at the judicial sale of the lands of the estate of F. C. Vinson, deceased, made by R. B. Lindsey, the administrator, several hundred acres of land in Colbert county, Ala., and, after report and confirma. tion, and payment of the purchase money, received, on the 26th day of September, 1887, the deed of the administrator thereto. This sale and deed included the N. W. 14 of the S. E. 14 of section 23. township 5, range 11. The intestate, Vinson, had no title to this 40 acres, but the same were public lands, the title of the government having never been divested. It is not shown when the report of this sale was made to the probate court by the administrator, and there is no evidence to show that Kellar acquired any color of title, until the execution of the administrator's deed on the 26th day of September, 1887, which was several months after the filing of the bill in this case; but it is a fact, established by the pleadings and proofs without controversy, that from the time of his purchase, in 1884, until the complainant's (Bullington's) entry, hereinafter referred to, and for a while thereafter, he was ignorant of his want of title, believed he had a good title, and claimed the said 40 acres as his own under said purchase, and that his possession and acts of enjoyment hereinafter mentioned were, in fact, adverse to the world, under claim of ownership by virtue of his said purchase. Kellar owned a large body of lands adjacent and contiguous to the above 40. In the fall of 1886, he verbally sold to Hull a half interest in his lands. They contained valuable stone, suitable for quarrying, and in November, 1886, stating

the case most strongly for the complainant, by joint act and arrangement they, Kellar and Hull, by themselves and employes, went upon said 40 acres, believing the same to be their property under Kellar's purchase at said judicial sale, and by his contract to sell a half interest to Hull, and began the work of opening a quarry. They erected the necessary buildings, did the grading for a side track to the railroad, opened the quarry, and entered upon the work of quarrying stone, expending about $500 in the preparatory work. This possession was continued, and business prosecuted without abatement, under the same claim of right and ownership, taking out and disposing of stone daily, until the service of the injunction in this cause on June 15, 1887. With this possession and enjoyment of the premises and claim of ownership in force, the complainant, Bullington, on the 1st day of February, 1887, entered, at the land office at Huntsville, as a homestead, the N. 1⁄2 of S. E. 4 of said section 23, township 5, range 11 W., which, it is seen, included the said 40 acres. The only averment in the bill of possession taken by complainant under this entry is in the following language: "Soon after his said entry thereof he built a dwelling house upon said lands, and moved his family into the same, and ever since thereof your orator and his family have resided on said lands, and are now residing thereon, and occupying said lands as a homestead." His only proof of his possession is his testimony, as follows: "After I entered the land, the 1st February, I moved on it the 11th day of March, 1887, and have lived on it ever since. I live about onequarter of a mile from said quarry." A few days after the entry, complainant notified Kellar and Hull of the same, and not to get any more stone off the land. They refused to submit to this demand, but continued working the quarry and claiming the land as before, and Kellar instituted, before the proper tribunal, a contest of the validity of the entry, and prosecuted the contest to its final determination in 1891, when the validity of the entry was adjudged. While the complainant and respondents were thus arrayed against each other, each in the assertion of title to the land, the complainant, on June 14, 1887, filed this bill to enjoin the further commission of the alleged trespasses, and for an account and recovery of the value of the stone taken.

The chancellor granted the relief prayed, and from his decree the respondents appeal.

It is clear the averment of the bill and the proof thereunder, taken in connection with other averments and proof, touching the possession complainant took after his entry do not show that the actual adverse possession by respondents of the land they held was displaced or disturbed by the possession which complainant took. The bill is not filed, concurrently with a real action at law to try the conflicting claims of title, in or

der to prevent the destruction of the estate, or irreparable waste and damage pending such a trial at law. In fact there is no averment or proof of facts from which it cán be deduced that a virtual destruction of the estate, or injury thereto for which adequate redress cannot be obtained in an action at law, would follow the continued possession and quarrying of stone by the respondents until an action at law could be tried. In the absence of averment and proof to the contrary, it must be assumed the respondents are solvent, and able to respond in damages for the alleged trespasses. The bill seems to rest for its equity upon the mere conclusions of the pleader that a resort to equity is necessary to prevent irreparable injury and a multiplicity of suits, rather than any statement of facts to that effect. The register's report shows that from February 1, 1887, to the service of the injunction, June 15, 1887, about 340 cubic yards of stone were quarried and disposed of. The value of this stone as it lay in the bluff is shown to have been about $34. Its value at the quarry after being put in shape for shipment was about $204, and at Sheffield, to where it was shipped and disposed of, $1,293. It is also manifest, from the evidence that the quantity thus quarried through a space of four and a half months was insignificant, as compared with the practically inexhaustible supply in the quarry. The conclusion, therefore, from the facts, if there were averments to the contrary, would be that no destruction of the estate or irreparable injury would follow the assertion of complainant's legal remedies without resort to injunction. A real action at law to try the disputed question of title, and for the recovery of damages and mesne profits, would serve to settle, in one action, the title to the land, and to award to plaintiff, if successful, all damages, not only for mesne profits, but for injuries committed in the nature of trespass or waste, (Code, c. 6, tit. 2, pt. 3;) and those damages are recoverable to the time of the trial, (Code, § 2716.) See, also, Cooper v. Watson, 73 Ala. 252; Beatty v. Brown, 76 Ala. 267; Sedg. & W. Tr. Title Land, § 668. High, in his work on Injunctions, discusses very fully the subject of injunction to prevent trespass. In section 698 he says: "To warrant relief * * the party aggrieved must show a satisfactory title to the locus in quo, and, if the title be denied or in doubt, the injunction will generally be refused against a defendant in possession until the title is established at law. But in a strong case of irreparable mischief the rule has been departed from; and where the party aggrieved is in possession he will be allowed to restrain such trespasses as would result in irreparable damage in the event of refusing the relief. Equity will not, however, enjoin a trespass to realty when plaintiff's title is in dispute, and has not been established at law, when no irreparable injury is shown. And where defendants are

in possession alike with plaintiffs of the premises in controversy, and the title is doubtful and disputed, and it is not shown that plaintiffs have taken any steps to establish their title, and no reason is shown why they are not so doing, they will be denied an injunction. In such case a court of equity will not presume to determine the title to the property upon affidavits, and will not permit a temporary injunction to be granted which would operate as an action of ejectment." | "A fundamental doctrine," says the same author in section 699, "underlying the entire jurisdiction of equity by injunction against the commission of trespass is that, where adequate relief may be had in the usual course of procedure at law, equity will not interpose by the extraordinary remedy of in- | junction." And he sums up, in section 701, in the following language: "To warrant the interference of equity in restraint of trespass two conditions must coexist: First, complainant's title must be established; and, second, the injury complained of must be irreparable in its nature. And to come within the rule the injury must be of such a nature as not to be susceptible of adequate pecuniary compensation in damages. Nor will equity interfere to restrain a trespasser simply because he is a trespasser, but only because the injury threatened is ruinous to the property in the manner in which it has been enjoyed, and will permanently impair its future enjoyment. And if the title to the locus in quo is in doubt, the injunction, if allowed at all, should only be temporary, until the title can be determined at law." In section 700 the author says that to warrant interference by injunction to prevent a multiplicity of suits "there must be different persons assailing the same right, and the principles upon which the relief is granted have no application to a repetition of the same trespass by one and the same person, the case being susceptible of compensation in damages." In Jerome v. Ross, 7 Johns. Ch. 315, canal commissioners being authorized by statute to enter upon any lands contiguous to the canals, and to dig for stone and other materials necessary for the prosecution of their work, dug up and removed stone from a ledge of rock on complainant's premises, who thereupon filed a bill for injunction. Chancellor Kent, finally disposing of the case, said: "The objection to the injunction in cases of private trespass, except under very special circumstances, is that it would be productive of public inconvenience by drawing cases of ordinary trespass within the cognizance of equity, and by calling forth, upon all occasions, its power to punish by attachment, fine, and imprisonment for a further commission of trespass, instead of the more gentle and common-law remedy by action and the assessment of damages by a jury. In ordinary cases this latter remedy has been found amply sufficient for the protection of property, and I do not think it ad

visable, upon any principle of justice or policy, to introduce the chancery remedy as its substitute, except in strong and aggravated instances of trespass which go to the destruction of the inheritance, or where the mischief is remediless." The complainant in that case was left to his remedy at law. It will be observed, too, in that case, that there was no question of complainant's title to the premises. In the present case, as we have seen, respondents were in possession of the locus in quo, claiming title, when complainant acquired his title by entry, and when he filed this bill. In the absence of some overruling equity, they had a constitutional right to have the validity of their claim of title tried in an issue to the country before being disturbed in their possession and use of the premises. They were not obliged to yield to the mere notice and demand of an adverse claimant, although the superior title of such claimant may have appeared to be clear. They had the right to have the claimant put his title and their own to a legal test. There is scarcely ground for an argument that complainant was in danger of suffering destruction of his estate, or irreparable injury thereto. There is not a shade of doubt, under the evidence, that if every yard of stone had been removed from his land, payment to him of the fair value thereof in money would have afforded ample and adequate redress. We have shown that such payment could have been enforced, and the title to the land settled, in one action at law. There was, therefore, no necessity whatever for resorting to injunction. The maxim, "Nullum tempus occurrit reipublicae," has no application to this case. It is true, there can be no adverse possession of land which can ripen into title against the government, and the doctrine of maintenance does not apply against it. Those are questions which pertain to the trial of the title when jurisdiction for that purpose has been properly invoked. Here the complainant has sought the wrong forum. In an action at law he may have the benefit of those immunities, if entitled to them. Reversed and remanded.

BAKER v. MAXWELL et al. (Supreme Court of Alabama. April 26, 1893.) EQUITY-VENDOR AND PURCHASER-RESCISSION OF

CONTRACT-COMPLAINT-SUFFICIENCY.

1. A bill to rescind a contract whereby plaintiffs conveyed to defendant certain land in consideration of the transfer to them of certain chattel and real-estate mortgages, on the ground of fraudulent representations of defendant as to the title of the mortgagors to the mortgaged land, and the existence at the time of the mortgaged chattels, is not bad because it shows that the contract is wholly executed.

2. Such bill need not negative the solvency of such mortgagors, nor aver that the debts secured by the mortgages were not enforceable aside therefrom.

3. Where the fraudulent representations alleged were of material facts conducive to the

transaction, such bill is not defective on the ground that the representations were not such as complainants had a right to rely on, because, by the exercise of diligence, they could have ascertained their falsity.

4. Where complainants assigned such mortgages, for value and without recourse, to a third person, and afterwards took an assignment back without recourse on such third person, they are not entitled to relief, in the absence of any legal or equitable obligation on them to accept such reassignment.

5. Where it does not appear that complainants had knowledge of the fraud at the time they transferred the mortgages to such third person, or at any time before the bill was filed, the bill is not bad on the ground that it shows that the fraud had been condoned and the transaction ratified, or that complainants were guilty of laches.

6. Where a bill to rescind a contract whereby complainants conveyed to defendant certain land in consideration of the transfer to them of certain mortgages held by defendant alleges particular concealments and misrepresentations by defendant as to the property nominally covered by the mortgages, and as to the title of the mortgagor to lands conveyed by one of them, and that complainants were induced thereby to convey the land to defendant and take the mortgages in payment, it is sufficient to entitle complainants to relief, so far as relief depends on the fraud of defendant.

Appeal from chancery court, Tuscaloosa county; Thomas Cobbs, Chancellor.

Bill by C. N. Maxwell and another against C. C. Baker to rescind a contract of sale by plaintiffs to defendant of certain land, and to compel a reconveyance. From a judgment overruling a demurrer to the bill, defendant appeals. Reversed.

The contract which it seeks to rescind is substantially as follows: Complainants sold and executed by deed to the defendant a certain lot in the city of Tuscaloosa, and in consideration for which the respondent transferred and assigned to the complainants three certain mortgages, without recourse on the respondent. The ground on which the bill seeks to rescind the said contract is that the respondent, at the time of making said contract, falsely represented to the complainants that the mortgagors to the said mortgages had a good and perfect title to certain property mentioned in said mortgages, at the time the mortgages were executed. The respondent demurred to the bill on the following grounds: First. Because it is averred in the bill that there was conveyed in the mortgages a large amount of personal property, and it is nowhere averred that the complainants could not get said property, and that it was not sufficient to satisfy the note secured by said mortgages. Second. Because it does not aver in the bill that the complainants have been unable to get possession of the lands conveyed under said mortgages, or that any one has deprived them of the same, and that the bill does not aver any fact or circumstance going to show that the complainants could not have made their money out of said notes by exercising the powers contained in the mortgages. Third. Because it is not averred in the bill that the complainants could not have at any time taken

possession of the lands conveyed in said mortgages, nor is it averred that the mortgagors were not in possession, or that they interfered or prevented the complainants from taking possession. Fourth. Because there is no averment in said bill going to show that the complainants have been put to an expensive lawsuit in collecting the amount due on said notes, or that they have ever attempted to exercise the power mentioned in said mortgage, or in any way endeavored to enforce their lien under the same, or that said creditors had ever refused to pay said notes or to surrender the property conveyed under said mortgages. Fifth. Because the bill, together with the exhibits thereto, shows that the complainants were not the legal owners of the notes or mortgages, and that they, without the consent of the defendant, transferred the said notes and mortgages to the J. Snow Hardware Company, without recourse on complainants, before the maturity of said notes and mortgages, and thereby placed themselves in a condition in which they could not collect the debts secured by said mortgages, and that the complainants, by said transfer, received full value of the said notes and mortgages, and were thereby released from all liability for the nonpayment of said notes and mortgages, in consequence of which they were not, and could not be, injured by the alleged transfer from the defendant to them. Sixth. Because the said bill and exhibits show that, long after the maturity of said note and the law day of said mortgages, the complainants, by their own acts, and without the consent of the defendant, repurchased said notes and mortgages from the said J. Snow Hardware Company, for value, without recourse on said hardware company, and this was done after they learned of the imperfections in, and defenses to, said notes and mortgages. The chancellor overruled these grounds of demurrer, and his decree in this behalf is assigned as error.

Wood & Mayfield, for appellant. Foster & Jones, for appellees.

MCCLELLAN, J. The present bill seeks a rescission of a contract made between Maxwell and Sanders, of the one part, and C. C. Baker, whereby the former conveyed to the latter a certain parcel or lot of land, the consideration being the transfer of three certain mortgages held by Baker to the grantors, and to have Baker decreed to reconvey the land to Maxwell and Sanders, the complainants, upon a retransfer and surrender of said mortgages to Baker, which they offer to do. The grounds upon which this relief is prayed are laid in the bill to be fraudulent concealments and misrepresentations of Baker as to the property nominally covered by the mortgages, and as to the title of the mortgagor to the lands embraced in one of them, and that complainants were induced by such concealments and misrepresentations