Davis v. Davis , 44 Ala. 342 ( 1870 )

B. F. SAFFOLD, J.

-The reasons assigned by the appellees in support of their motion to dismiss the appeal in this case are: 1st. That one of the appellants, James F. Davis, who was a' defendant to the original bill, and a complainant in the amended bill filed for the exclusive purpose of making him a party complainant, is also an appellee. 2d. That the other appellants have received the money procured from the sale of the land under the decree, which they seek to reverse, and still retain it.

The original bill was answered, not under oath, by all of the defendants; the answer being signed by their solicitors. By the amended bill James F. Davis, a defendant to the original bill, was made a party’ complainant. The decree for the sale of the land was rendered on the original and amended bill, decree pro confesso and testimony. The land was sold under the decree. By affidavits filed, it is shown that all of the appellants, except James F. Davis, received their proportion of the cash payment.

One who receives and retains the purchase money of land, sold under a decree, cannot reverse the decree, if the reversal will divest the title. He must make restitution.— Knox’s Distributee v. Steele, Adm’r, 18 Ala. 815; Prewitt v. Garner, 32 Ala. 13.

As to the position of James F. Davis, there is no rule of practice which will allow one appellant to assign errors against his co-appellants. — Knox’s Distributee v. Steele, Adm’r, 18 Ala. 815.

The appeal is dismissed without prejudice.