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S. R. Coleman, for appellant. A. H. Long- cre<litor, no motion will lie, at the instance of ino, for appellee.

subsequent attaching creditors, to have the

sheriff pay such proceeds to them. CAMPBELL, C. J. The summons issued Appeal from circuit court, Tallahatchee during the term of court, and returnable in- county; R. W. Williamson, Judge. stanter, was a nullity, and did not confer Appeal by Scharff, Bernheimer & Co. from jurisdiction on the court by virtue of its a judgment overruling their motion to have service. It was not amendable by virtue of C. H. Fonda, sheriff, pay the proceeds of a section 2288 of the Code of 1880, for it was sale under attachment to them. Affirmed. not conformable to law in its command. If

S. R. Coleman, for appellants. Wm. C. it had been returnable, as required by law,

McLean, for appellee. (section 1525, Code 1880,) and any matter required to be inserted was omitted, it would WOODS, J. The question involved in the have been amendable; but it was in its present appeal is res adjudicata. The very frame and purpose violative of law, and good controversy now pressed by appellants, and for nothing, without form, and void as a the precise point now insisted upon before summons, and the person served was under us, was decided adversely to appellants in no obligation to pay any attention to it, and Scharff y. Chaffe, 68 Mjss. 641, 9 South. 897. had the right to have it vacated at any time The supposed superiority of appellants' lied on petition or motion, and it was so good was decided in that decision of this court, for nothing as to be subject to collateral at- on the case made on that record by appeltack by anybody whenever it was brought lants, and the judgment of the lower court, into question. There must be an effort to condemning the property to sale to pay the conform to law to entitle to the claim of debt of the appellee therein, was distinctly mere irregularity in process. The judgment affirmed. The sheriff of Tallahatchee counrefusing to vacate the judgment will be re- ty, in compliance with the former judgment versed, and in pursuance of the long-settled of the circuit court of that county, affirmed practice of this court, without any statute, by us, paid the proceeds of the cotton to the the appellant will be held to be in court as a successful parties. After the affirmance by party to the suit for such further proceed- this court of the former judgment in favor ings as may be had in the pending cause. of Chaffe, Powell & West, and after the ofReversed and remanded.

ficer had paid the funds arising from the sale of the cotton in dispute to that firm, appellants made their motion-the founda

tion of the present appeal-to have the sher-FLY et al. 7. KING, Sheriff.

iff apply the funds to the payment of their (Supreme Court of Mississippi. Dec. 18, 1893.) demand. Properly, the court below overruled REVIEW ON APPEAL-OBJECTIONS NOT RAISED this motion, The sheriff is not a party in Below.

interest. He is the mere custodian of the An objection that the suit was improp- fund, and his connection with the controerly brought in the name of the sheriff for the use of another cannot be raised for the first

versy is purely nominal, It is really the time on appeal, if a correct result was reached same controversy between the same parties, in the court below.

and the sheriff is to be protected in yielding Appeal from circuit court, Tunica county; obedience to the judgment of the lower R. W. Williamson, Judge.

court, affirmed by the supreme court.

AlAction by T. 0. King, as sheriff, for the use firmed. of another, against Fly & Hobson. Judgment for plaintiff. Defendants appeal. Affirmed.

FINNEY v. SPEED et al. St. John Waddell, Jas. R. Chalmers, and

(Supreme Court of Mississippi. Nov. 20, 1893.) Johnston & Johnston, for appellants. F. A.

APPEAL-TIME OF TAKING-DISABILITY. Montgomery, Jr., for appellee.

1. Where the record shows that appellant,

at the time of suit, was non compos mentis, a COOPER, J. No objection was made in

plea in bar of the appeal must show the rethe court below to the prosecution of this suit moval of the disability, and the subsequent in the name of King, the nominal plaintiff. lapse of the period for taking appeal. A correct result having been reached, the

2. The appeal of an insane person need not

await the removal of his disability, and, if takjudgment will not be reversed on the objec

en by his guardian or next friend, need not be tion for the first time taken here. Elson v. within the time for appeals of sane persons. Barrier, 50 Miss. 394. Judgment affirmed. Appeal from chancery court, Warren coun

ty; Claude Pintard, Chancellor.

Appeal by W. D. Finney, non compos men

tis, against Frederick Speed, trustee, and SCHARFF et al. v. FONDA, Sheriff.

others. On demurrer to plea in bar of the (Supreme Court of Mississippi. Dec. 18, 1893.) appeal. Demurrer sustained.

After affirmance, on appeal, of a judg-

Gibson, Henry & Vollor and Southworth, ment directing the sheriff to pay the proceeds

Paxton & Stevens, for appellant. N. Marof a sale under attachment to the attaching shall, for appellees.


CAMPBELL, C. J. A plea must be consid- ed. The several cases cited are in complete ered with reference to that which it pro accord with each other, and conduct to the fesses to answer in order to determine as to conclusion now announced. The demurter its sufficiency. This plea is in bar of the to the plea is sustained, and leave given the appeal from a decree in a cause in which the appellee to answer over. 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

KELLAR et al. v. BULLINGTON. the disability existing when the decree was

(Supreme Court of Alabama. April 27, 1893.) given, and the lapse of the requisite period

TRESPA83-IXJUNCTION-WHEN WILL LIE. to bar appeal after the removal of such dis

Injunction will not lie in favor of a comability, and before the appeal. If an infant plainant out of possession to restrain the remorwere to appeal from a decrep., and the record al of stone from land of which defendants had did not show, in conjunction with lapse of

possession under a claim of ownership when

complainant obtained title thereto from the time of which the court would take notice,

government, where the disputed question of title that the disability had been removed long has not been adjudicated. enough before the appeal to bar it, it would

Appeal from chancery court, Colbert coundevolve on the appellee, pleading in bar of

ty; Thomas Cobbs, Chancellor. the appeal, to aver the removal of the disa.

Action by William H. Bullington against A. bility at such time as to show the appeal to

H. Kellar and another to enjoin defendants be barred; and if a married woman appeal

from removing stone from certain land, and ed, and coverture was a disability, it would

to recover damages for stone removed. From be necessary for the appellee, pleading the

a judgment for plaintiff, defendants appeal bar of the appeal by time, where the record

Reversed. showed coverture to exist when the judgment was given, and it did not appear to

L. B. Cooper and Roulhal & Nathan, for have ceased, to aver removal of the disability

appellants. J. B. Moore, for appellee. at such time as to bar the appeal. True, who claims to be within the exception of a HEAD, J. On March 17, 1884, Arthur H. statute must bring himself within it, but Kellar purchased at the judicial sale of the the cases put do not contravene this rule. lands of the estate of F. C. Vinson, deceased, The state of case existing, as shown by the made by R. B. Lindsey, the administrator, record, at the time of judgment or decree ap- several hundred acres of land in Colbert pealed from, is presumed to continue, and county, Ala., and, after report and confirmastill exist, unless the record and what is ju- tion, and payment of the purchase money. dicially taken notice of in connection with received, on the 26th day of September, 1887, It show the contrary.

the deed of the administrator thereto. This We cannot accept the view of counsel for sale and deed included the X. W. 14 of the the appellees to the effect that a non com- S. E. 14 of section 23, township J, range 11. pos mentis cannot appeal until the removal The intestate, Vinson, had no title to this of his disability, and that an appeal by his 40 acres, but the same were public lands, guardian or next friend must be taken with- the title of the government having never been in the time prescribed to bar appeals by divested. It is not shown when the report those not under disability. To hold that no of this sale was made to the probate court appeal can be had until removal of disability by the administrator, and there is no eviis to deny an appeal where there is never re. dence to show that Kellar acquired any color moval of the disability; and to hold that an of title, until the execution of the adminappeal by guardian or next friend is not istrator's deed on the 26th day of September, subject to the saving in favor of persons of 1887, which was several months after the unsound mind is to assume that the appeal filing of the bill in this case; but it is a fact, is that of the guardian or next friend, where established by the pleadings and proofs withas it is the appeal of the person of unsound out controversy, that from the time of his mind, and the guardian or next friend is not purchase, in 1884, until the complainant's a party in Interest, but appears for the pro- (Bullington's) entry, hereinafter referred to, tection of the interest of the person whose and for a while thereafter, he was ignorant interests are involved, because he is assumed of his want of title, believed he had a good to be incapable of suitably representing him- title, and claimed the said 40 acres as his self. The adjudications of this court as to own under said purchase, and that his posthe rights of infants to show cause against session and acts of enjoyment hereinafter a decree, and to appeal from it, throw light mentioned were, in fact, adverse to the on the question here involved, and suggest world, under claim of ownership by virtue of its true solution. Sledge v. Boone, 57 Miss. his said purchase. Kellar owned a large 222; Enochs V. Harrelson, Id. 465; Mc- body of lands adjacent and contiguous to Lemore v. Railroad Co., 58 Miss. 514; Vaughn the above 40. In the fall of 1886, he verv. Hudson, 59 Miss. 421. The suggestion bally sold to Hull a half interest in his lands. that McLemore v. Railroad Co., 58 Miss. 514, They contained valuable stone, suitable for is opposed to the view now held, is unfound- quarrying, and in November, 1886, stating

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the case most strongly for the complainant, der to prevent the destruction of the estate, by joint act and arrangement they, Kellar or irreparable waste and damage pending and Hull, by themselves and employes, went such a trial at law. In fact there is no upon said 40 acres, believing the same to be averment or proof of facts from which it can their property under Kellar's purchase at be deduced that a virtual destruction of the said judicial sale, and by his contract to sell estate, or injury thereto for which adequate a half interest to Hull, and began the work redress cannot be obtained in an action at of opening a quarry. They erected the nec law, would follow the continued possession essary buildings, did the grading for a side and quarrying of stone by the respondents track to the railroad, opened the quarry, and until an action at law could be tried. In the entered upon the work of quarrying stone, absence of averment and proof to the conexpending about $500 in the preparatory trary, it must be assumed the respondents work. This possession was continued, and are solvent, and able to respond in damages business prosecuted without abatement, un- for the alleged trespasses. The bill seems der the same claim of right and ownership, to rest for its equity upon the mere conclutaking out and disposing of stone daily, un- sions of the pleader that a resort to equity til the service of the injunction in this cause is necessary to prevent irreparable injury on June 15, 1887 With this possession and and a multiplicity of suits, rather than any enjoyment of the premises and claim of own- statement of facts to that effect. The regership in force, the complainant, Bullington, ister's report shows that from February 1, on the 1st day of February, 1887, entered, at 1887, to the service of the injunction, June the land office at Huntsville, as a homestead, 15, 1887, about 340 cubic yards of stone were the N. 12 of S. E. 14 of said section 23, town- quarried and disposed of. The value of this ship 5, range 11 W., which, it is seen, in- stone as it lay in the bluff is shown to have cluded the said 40 acres. The only averment been about $34. Its value at the quarry aftin the bill of possession taken by complain- er being put in shape for shipment was about ant under this entry is in the following lan- $204, and at Sheffield, to where it was shipped guage: "Soon after his said entry thereof and disposed of, $1,293. It is also manifest, he bu a dwelling house upon said lands, from the evidence that the quantity thus and moved his family into the same, and quarried through a space of four and a half ever since thereof your orator and his family months was insignificant, as compared with have resided on said lands, and are now re- the practically inexhaustible supply in the siding thereon, and occupying said lands as quarry. The conclusion, therefore, from the a homestead." His only proof of his pos- facts, if there were averments to the consession is his testimony, as follows: "After trary, would be that no destruction of the I entered the land, the 1st February, I moved estate or irreparable injury would follow the on it the 11th day of March, 1887, and have assertion of complainant's legal remedies lived on it ever since. I live about one- without resort to injunction. A real action quarter of a mile from said quarry." A few at law to try the disputed question of title, days after the entry, complainant potified and for the recovery of damages and mesne Kellar and Hull of the same, and not to get profits, would serve to settle, in one action, any more stone off the land. They refused the title to the land, and to award to plainto submit to this demand, but coutinued tiff, if successful, all damages, not only for working the quarry and claiming the land as mesne profits, but for injuries committed in before, and Kellar instituted, before the prop- the nature of trespass or waste, (Code, c. 6, er tribunal, a contest of the validity of the tit. 2, pt. 3;) and those da mages are recoventry, and prosecuted the contest to its final erable to the time of the trial, (Code, 8 2716.) determination in 1891, when the validity of See, also, Cooper V. Watson, 73 Ala. 252; the entry was adjudged. While the com- Beatty v. Brown, 76 Ala. 267; Sedg. & W. plainant and respondents were thus arrayed Tr. Title Land, 8 668. High, in his work on against each other, each in the assertion of Injunctions, dis usses very fully the subject title to the land, the complainant, on June 14, of injunction to prevent trespass. In sec1887, filed this bill to enjoin the further com

tion 698 he says:

"To warrant relief ... mission of the alleged trespasses, and for an the party aggrieved must show a satisfactory account and recovery of the value of the title to the locus in quo, and, if the title be stone taken. The chancellor granted the re- denied or in doubt, the injunction will genlief prayed, and from his decree the respond- erally be refused against a defendant in posents appeal.

session until the title is established at law. It is clear the averment of the bill and the But in a strong case of irreparable mischief proof thereunder, taken in connection with the rule has been departed from; and where other averments and proof, touching the pos- the party aggrieved is in possession he will session complainant took after his entry do

be allowed to restrain such trespasses as not show that the actual adverse possession would result in irreparable damage in the by respondents of the land they held was event of refusing the relief. Equity will not, displaced or disturbed by the possession however, enjoin a trespass to realty when which complainant took. The bill is not plaintiff's title is in dispute, and has not been filed, concurrently with a real action at law established at law, when no irraparable into try the conflicting claims of title, in or- jury is shown. And where defendants are

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in possession allke with plaintiffs of the visable, upon any principle of justice or polpremises in controversy, and the title is icy, to introduce the chancery remedy as its doubtful and disputed, and it is not shown substitute, except in strong and aggravated that plaintiffs have taken any steps to estab- instances of trespass which go to the de lish their title, and no reason is shown why struction of the inheritance, or where the they are not so doing, they will be denied an mischief is remediless." The complainant injunction. In such case a court of cquity | in that case was left to his remedy at law. will not presume to determine the title to the It will be observed, too, in that case, that property upon affidavits, and will not permit there was no question of complainant's title a temporary injunction to be granted which to the premises. In the present case, as we would operate as an action of ejectment." bave seen, respondents were in possession of "A fundamental doctrine,” says the same au- the locus in quo, claiming title, when comthor in section 699, "underlying the entire plainant acquired his title by entry, and when jurisdiction of equity by injunction against he filed this bill. In the absence of some the commission of trespass is that, where overruling equity, they had a constitutional adequate relief may be had in the usual right to have the validity of their claim of course of procedure at law, equity will not title tried in an issue to the country before interpose by the extraordinary remedy of in- being disturbed in their possession and use junction.” And he sums up, in section 701, of the premises. They were not obliged to in the following language: "To warrant the yield to the mere notice and demand of an interference of equity in restraint of tres- adverse claimant, although the superior title pass two conditions must coexist: First, of such claimant may have appeared to be complainant's title must be established; and, clear. They had the right to have the claimsecond, the injury complained of must be ant put his title and their own to a legal irreparable in its nature. And to come with- test. There is scarcely ground for an arguin the rule the injury must be of such a na- ment that complainant was in danger of sufture as not to be susceptible of adequate fering destruction of his estate, or irreparapecuniary compensation in damages. Nor ble injury thereto. There is not a shade of will equity interfere to restrain a trespasser doubt, under the evidence, that if every yard simply because he is a trespasser, but only of stone had been removed from his land, because the injury threatened is ruinous to payment to him of the fair value thereof in the property in the manner in which it has money would have afforded ample and ade. been enjoyed, and will permanently, impair quate redress. We have shown that such its future enjoyment. And if the title to the payment could have been enforced, and the locus in quo is in doubt, the injunction, if title to the land settled, in one action at law. allowed at all, should only be temporary, un- There was, therefore, no necessity whaterer til the title can be determined at law.” In for resorting to injunction. The maxim, section 700 the author says that to warrant “Nullum tempus occurrit reipublicae," has no interference by injunction to prevent a multi- | application to this case. It is true, there plicity of suits “there must be different per- can be no adverse possession of land which sons assailing the same right, and the prin- can ripen into title against the government, ciples upon which the relief is granted have and the doctrine of maintenance does not no application to a repetition of the same apply against it. Those are questions which trespass by one and the same person, the pertain to the trial of the title when juriscase being susceptible of compensation in diction for that purpose has been properly damages." In Jerome v. Ross, 7 Johns. Ch. invoked. Here the complainant has sought 315, canal commissioners being authorized by the wrong forum. In an action at law he statute to enter upon any lands contiguous to may have the benefit of those immunities, if the canals, and to dig for stone and other entitled to them. Reversed and remanded. 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.

BAKER V. MAXWELL et al. Chancellor Kent, finally disposing of the

(Supreme Court of Alabama. April 26, 1893.) case, said: "The objection to the injunction

EQUITY_VENDOR AND PURCHASER--RESCISSJON OP in cases of private trespass, except under

COXTRACT-COMPLAINT-SUFFICIENCY. very special circumstances, is that it would

1. A bill to rescind a contract whereby be productive of public inconvenience by plaintiffs conveyed to defendant certain land in drawing cases of ordinary trespass within

consideration of the transfer to them of certain

chattel and real-estate mortgages, on the ground the cognizance of equity, and by calling

of fraudulent representations of defendant as forth, upon all occasions, its power to punish to the title of the mortgagors to the mortgaged by attachment, fine, and imprisonment for a

land, and the existence at the time of the mortfurther commission of trespass, instead of the

gaged chattels, is not bad because it shows that

the contract is wholly executed. more gentle and common-law remedy by ac- 2. Such bill need not negative the solvency tion and the assessment of damages by a of such mortgagors, nor aver that the debts jury. In ordinary cases this latter remedy

secured by the mortgages were not enforceable

aside therefrom. has been found amply sufficient for the pro

3. Where the fraudulent representations als tection of property, and I do not think it ad- leged were of material facts conducire to the transaction, such bill is not defective on the possession of the lands conveyed in said ground that the representations were not such

mortgages, nor is it averred that the mortas complainants had a right to rely on, because, by the exercise of diligence, they could have

gagors were not in possession, or that they ascertained their falsity.

interfered or prevented the complainants 4. Where complainants assigned such mort. from taking possession. Fourth. Because gages, for value and without recourse, to a

there is no averment in said bill going to third person, and afterwards took an assignment back without recourse on such third per

show that the complainants have been put onn, they are not entitled to relief, in the ab- to an expensive lawsuit in collecting the sence of any legal or equitable obligation on

amount due on said notes, or that they have them to accept such reassignment. 5. Where it does not appear that complain

ever attempted to exercise the power menants had knowledge of the fraud at the time tioned in said mortgage, or in any way enthey transferred the mortgages to such third deavored to enforce their lien under the person, or at any time before the bill was filed,

same, or that said creditors had ever refused i he bill is not bad on the ground that it shows that the fraud had been condoned and the

to pay said notes or to surrender the proptransaction ratified, or that complainants were erty conveyed under said mortgages. Fifth. guilty of laches.

Because the bill, together with the exhibits 6. Where a bill to rescind a contract whereby complainants conveyed to defendant certain

thereto, shows that the complainants were land in consideration of the transfer to them of not the legal owners of the notes or mortcertain mortgages held by defendant alleges gages, and that they, without the consent of particular concealments and misrepresentations

the defendant, transferred the said notes by defendant as to the property nominally cov. ered by the mortgages, and as to the title of

and mortgages to the J. Snow Hardware the mortgagor to lands conveyed by one of Company, without recourse on complainants, them, and that complainants were induced there

before the maturity of said notes and mortby to convey the land to defendant and take the mortgages in payment, it is sufficient to en

gages, and thereby placed themselves in a title complainants to relief, so far as relief condition in which they could not collect the depends on the fraud of defendant.

debts secured by said mortgages, and that Appeal from chancery court, Tuscaloosa

the complainants, by said transfer, received county; Thomas Cobbs, Chancellor.

full value of the said notes and mortgages, Bill by C. N. Maxwell and another against

and were thereby released from all liability C. C. Baker to rescind a contract of sale by

for the nonpayment of said notes and mort. plaintiffs to defendant of certain land, and to gages, in consequence of which they were compel a reconveyance. From a judgment not, and could not be, injured by the alleged overruling a demurrer to the bill, defendant

transfer from the defendant to them. Sixth. appeals. Reversed.

Because the said bill and exhibits show that, The contract which it seeks to rescind is

long after the maturity of said note and the substantially as follows: Complainants sold

law day of said mortgages, the complainand executed by deed to the defendant a

ants, by their own acts, and without the certain lot in the city of Tuscaloosa, and in

consent of the defendant, repurchased said consideration for which the respondent trans.

notes and mortgages from the said J. Snow ferred and assigned to the complainants

Hardware Company, for value, without rethree certain mortgages, without recourse on

course on said hardware company, and this the respondent. The ground on which the

was done after they learned of the imperbill seeks to rescind the said contract is that

fections in, and defenses to, said notes and the respondent, at the time of making said

mortgages. The chancellor overruled these contract, falsely represented to the complain grounds of demurrer, and his decree in this ants that the mortgagors to the said mort

behalf is assigned as error. gages had a good and perfect title to certain Wood & Mayfield, for appellant. Foster & property mentioned in said mortgages, at the Jones, for appellees. time the mortgages were executed. The respondent demurred to the bill on the follow- MCCLELLAN, J. The present bill seeks a ing grounds: First. Because it is averred in rescission of a contract made between Maxthe bill that there was conveyed in the mort- well and Sanders, of the one part, and 0. O. gages a large amount of personal property, Baker, whereby the former conveyed to the and it is nowhere averred that the complain. latter a certain parcel or lot of land, the conants could not get said property, and that it sideration being the transfer of three certain was not sufficient to satisfy the note secured mortgages held by Baker to the grantors, by said mortgages. Second. Because it does and to have Baker decreed to reconvey the not aver in the bill that the complainants | land to Maxwell and Sanders, the complain. have been unable to get possession of the ants, upon a retransfer and surrender of lands conveyed under said mortgages, or said mortgages to Baker, which they offer to that any one has deprived them of the same, do. The grounds upon which this relief is and that the bill does not aver any factor prayed are laid in the bill to be fraudulent circumstance going to show that the com- concealments and misrepresentations of Baplainants could not have made their money ker as to the property nominally covered Sy out of said notes by exercising the powers the mortgages, and as to the title of the contained in the mortgages. Third. Because mortgagor to the lands embraced in one of it is not averred in the bill that the com- them, and that complainants were induced plainants could not have at any time taken by such concealments and misrepresentations

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