[Brummell v. Crook.]

now the question for decision. The chancellor held it sufficient, and complainant appealed.

At the time of the dismissal which is supposed to have constituted an adjudication of the merits, the cause was not at issue. There was no pleading except the bill and no decree pro confesso. In no sense was it ready for trial or set down to be heard. By no known rule of practice could the chancellor have then adjudicated the merits of the complainant's demand for relief (we do not say controversy, for no controversy or issue had been formed, touching the merits), and the case did not come within the operation of rule 28 of chancery practice, whereby the voluntary dismissal of the bill by the complainant, after the cause is set down to be heard, is made the equivalent of a final adjudication of the merits. The effect of that rule itself is that a mere voluntary dismissal by the complainant is not an adjudication of the merits unless the cause had been set down to be heard, whatever might have been the effect of such a dismissal prior to the adoption of that rule. As to the prior rule see Howard v. Bugbee, 25 Ala. 548.

We are, therefore, unable to see upon what principle such a dismissal can be held to constitute a bar to another suit.

We are not passing upon any question of contempt, for none is raised. The sufficiency of the plea of res adjudicata is the only matter before us.

The decretal order of the chancellor is reversed, the plea is disallowed and the cause remanded.

Brummell v. Crook.

Suit in Ejectment on Tax Title.

1. Ascertainment of taxes paid by plaintiff.-When, in a suit in ejectment founded on a tax title, a recovery is defeated on the ground that the tax sale was invalid for any other reason than that the taxes were not due, and the court proceeds under the statute (Code of 1896. §4083) to ascertain the amount of the taxes for which the lands were liable at the time of the sale, etc., the court has power to determine the relative value of the land in suit and other lands on which the taxes were assessed and paid in gross, and render judgment for plaintiff for the proportionate share of such taxes due on the lands in suit.

[Brummell v. Crook.]

2. Rights of sub-purchaser.-The fact, that a sub-purchaser of lands held under tax title, included and paid the amount of the taxes for which the lands were sold as a part of the purchase money for the lands sued for, together with other lands, does not prevent a recovery of such taxes on failure of the tax title under Code of 1896, §4083.

APPEAL from Calhoun Circuit Court.
Tried before Hon. GEO. E. BREWER.

BLACKWELL & KEITH, for appellants, cited, Blackwell on Tax Titles, 278-9.

S. D. G. BROTHERS, contra, cited, Code of 1886, §600.

COLEMAN, J.-The appellee sued in ejectment to recover a certain described lot therein lying and being in the city of Anniston. The plaintiff relied upon a tax title. A recovery was defeated for reasons other than that the taxes were not due, and upon motion of plaintiff, the court forthwith impanneled a jury as provided in section 4083 of the Code of 1896. The question presented for review is, first, whether, under the facts, the plaintiff was entitled to recover anything, and if so, was the amount specified by the court correct? The facts are as follows: Lot twelve, as a whole, belonged to one Frye. He sold and conveyed a portion, the part now in controversy, to defendants. After this sale, Frye executed a mortgage to the Chattanooga Savings Bank upon the balance of the lot. The mortgage provided that the mortgagee might pay any taxes assessed against the mortgaged property, and the mortgage should stand as a security for such assessments. After the sale the entire lot was assessed, just as before the sale of a part to defendants. The owner defaulted in the payment of the taxes assessed against the lot, and the whole lot was sold for taxes. The Chattanooga Savings Bank became the purchaser. The mortgagor subsequently defaulted, and the property was advertised for foreclosure. Before the sale and in contemplation thereof, the amount due as the mortgage debt, and also the amount paid at the tax sale by the mortgagee was ascertained, and it was understood and agreed between the mortgagee and the plaintiff, that she would bid and pay the full amount thus ascertained, including the debt and taxes, and the

[Brummell v. Crook.]

mortgagee agreed to make a deed to the property included in the mortgage and also whatever interest it acquired and owned by the purchase at the tax sale. It was shown, and not controverted, that the relative value of the part sold to defendants to the whole was about one-fourth.

The appellants contend that the circuit court had no authority or jurisdiction to make an apportionment and ascertain the proportionate value. No authority is cited in support of the proposition, and we can perceive no good reason for such contention. Furthermore, we are of opinion that defendant can have no grounds of complaint, if instead of having the entire amount assessed against the whole lot to pay, he is required to pay only one-fourth part. We are of opinion the court ruled rightly on this question.

It is further contended, that the foreclosure of the mortgage and the payment of the mortgage debt and the taxes for which the lot was sold, to the mortgagee, extinguished the claim for taxes paid prior to the foreclosure, and that the plaintiff got all she purchased, and paid only what she agreed to pay. There is some foundation in the argument, but the statute, section 4083, seems to be plain and unmistakable. It declares that "If in any suit brought by the purchaser, or other person claiming under him to recover possession of lands sold for taxes, and a recovery is defeated on the ground that the sale was invalid for any other reason than that the taxes were not due, the court shall forthwith, on the motion of the plaintiff, impannel a jury to ascertain the amount of taxes for which the lands were liable at the time of the sale, and for the payment of which they were sold, with interest thereon from the date of sale, and the amount of such taxes on the lands, if any, as the plaintiff, or the person under whom he claims, has since such sale, lawfully paid," etc. The court seems to have been guided strictly by the provisions of the statute.

We find no error in the record.
Affirmed.

INDEX.

ACTIONS AND PARTIES.

1. County the party really interested in hire of convict.-An action
on a bond for the hire of a county convict, made with an agent
for the county, payable to the county, is properly brought in
the name of the county as the party really interested. (Code
of 1886. §2594), and also as the payee or obligee in the con-
tract. Pike County v. Hanchey, 36.

2. The owner of a judgment, the party aggrieved by failure to col-
lect execution.-The owner of a judgment is "the person ag-
grieved" by the misfeasance of the sheriff in failing to make
the money on execution issued thereon, and may maintain an
action on the sheriff's official bond in his own name, (Code of
1886, §2575). Burns v. George, 504.

3. General averment of ownership sufficient.-In an action on the
official bond of the sheriff by the assignee of the judgment,
for failure to make the money on an execution, it is sufficient
to aver the plaintiff's ownership of the judgment in general
terms, leaving it to the evidence, upon proper issue made,
to show how it was acquired, and, if essential, that it was
assigned on the records of the court, Ib. 504.

4. When the demand is ex contractu; departure.-When the affidavit
for an attachment before a justice of the peace avers that de-
fendant is justly indebted to the plaintiff in the sum named
after allowing all just offsets and demands, the action is
ex contractu; and a complaint ex delicto filed on appeal to the
circuit court, is a fatal departure. James v. Vicors, 32.

5. Complaint on promissory note as the property of plaintiff; legal
title not in issue.-Where the complaint, in an action on a
promissory note by one other than the payee, avers merely
that the note sued on is the property of the plaintiff, and de-
fendant denies by sworn plea that it is the property of plain-
tiff, only the beneficial ownership, and not the legal title to
the note is presented by the issue; and it appearing that the
note was indorsed to plaintiff in blank, and by him delivered
to, and still held by another, as collateral security for plain-
tiff's debt, he cannot recover. Bank of Piedmont v. Smith, 57.
6. Assumpsit for money had and received; case at bar.-A testator
left surviving his widow who at the time of his death, was
living separate from him without the State, and an only
daughter, who was married, and over eighteen but under
twenty-one years of age; on the selection of the widow an
exemption of personal property was set apart for the benefit
of herself and daughter, and on its delivery to the widow was
converted into money amounting to one thousand dollars: no
family relation existing between widow and daughter, the
latter demanded one-half the money: Held, that on the re-
fusal of the widow to pay, claiming the money as her own
exclusively, it became at the election of the daughter, money
had and received to her use, for the recovery of which she
could maintain assumpsit. Lanford v. Lee, 248.

7. General issue; what not within.-In an action for work and labor
done, and for money had and received, the general issue mere-

ACTIONS AND PARTIES-Continued.

ly traverses the averments of the complaint; and the ques-
tion of defendant's liability because the work was done for
the defendant under a special contract with a separate cor-
porate body vested with exclusive authority to make such
contract, and to receive and disburse the funds in payment
therefor, and that defendant was without legal authority to
hold such funds or pay the same to plaintiff, is not within the
issue made by the pleadings. Hartford, Herbert & Co. v. City
of Attalla, 59.

8. Money paid by defendant's agent under mistake of fact is avail-
able as set-off.-Where money was paid by defendant's agent,
on account of freight charges claimed by plaintiff, under a
mistake and in ignorance of the fact that the freight charges
had been prepaid, defendant had a good cause of action to re-
cover back the same, and the claim was a proper subject of
set-off. Converse Bridge Co. v. Collins, 534.

9. Creditor of partnership, a creditor of the members of the firm.
A creditor of a partnership is a creditor of the several mem-
bers of the firm, and may sue either, or the legal representa-
tive of either, for the obligation of all. Freeman v. Pullen,
235.

10. Liability of county for personal injuries from defective bridges.
The county is liable for personal injuries caused from a de-
fective bridge erected under contract with the commissioners'
court, without a guaranty or bond, under Code of 1896, §2512,
whether the bridge is on a public highway or not. Barks v.
Jefferson County, 600.

11. Special property will support action.-A party who holds live
stock under a claim bond pending the claim suit has a spe-
cial property therein, which will sustain an action for its
negligent killing, and plaintiff may show the sum paid to
satisfy his obligation to return the property after condemna-
tion, as evidence of damages. L. & N. R. R. Co. v. Brinkerhoff
& Co., 606.

ADMINISTRATION OF ESTATE.

I. APPOINTMENT OF ADMINISTRATORS.

1. Non-residents; appointment of as administrator, &c.—At common
law non-residence would not disqualify or render a person in-
competent to be appointed executor or administrator. There
is no statute changing the rule in this state since the repeal
of the provision (Rev. Code, §1976), declaring a person who
was not an inhabitant of this state "an unfit person to serve
as executor." Fulghom v. Fulghom, 403.
2. Residuary legatee; right to such letters.-Where a decedent, a
resident and the owner of property in this state at the time
of his death, disposes of such property by will in which no
executor is named, the residuary legatee, although a non-resi-
dent, is entitled to letters of administration with the will an-
nexed under Code of 1896, §53. Ib. 403.

II. PRESENTATION OF CLAIMS.

3. Statute of non-claim; act of Dec. 9, 1896, construed. The act of
Dec. 9, 1896, (Code of 1896, §130), amending the former statute
of non-claim, and fixing twelve months as the time within
which claims must be presented, operates prospectively only,
upon all claims, whether they accrued prior or subsequent to
its enactment but not so as to allow a longer period than
eighteen months to claims which had accrued during the ex-