Jones v. State , 100 Ala. 209 ( 1893 )

McCLELLAN, J.—

This action is prosecuted by the State to-the use of Township Sixteen, Bange Six in Walker county, against W. J., B. L. and A. J. Jones upon .certain notes executed by the defendants, payable to the plaintiff for the use of said township. The case went to the jury on the general issue, and there was verdict and judgment for plaintiff. The main questions presented by this record appear, however, to have relation to the sufficiency of several special pleas which were held bad on plaintiff’s demurrer.

In considering this action of the trial court we are to keep in mind two familiar general principles especially applicable to pleas, and which have a field of operation in this case. One of these is that each plea must state facts that the court may be able to say from reading it in connection with the complaint “that it is an answer to the action, and that the plaintiff may understandingly reply to it.”—Hardy et al. v. Branch Bank, 15 Ala. 722. And the other, which indeed results from that just stated, is that a particular plea can not be aided by reference to another or other pleas, unless such other pleas are made a part of it by express reference. “One plea can not be taken advantage of, except when they are connected by a reference, to help or vitiate another, for every plea must stand or fall by itself.”—Pope v. Welsh’s Adm'r, 18 Ala. 631; Clements v. Cribbs & Covington, 19 Ala. 241; Wright v. Lindsay, 20 Ala. 428.

Certain of these special pleas allege that the notes sued on were given for the purchase-money of land sold by the plaintiff to one of the defendants, that the purchaser was not put, and has never been, in pqssession, and that he is unable to recover possession and the plaintiff is unable to put him in possession. So far as these averments of inability of the purchaser to take, and of plaintiff to put him in, possession are concerned, the plea is not a statement of facts but of the pleader’s conclusions of law, and these conclusions are not confessed by the demurrer. The facts averred in this connection are_ not sufficient to constitute a defense to the action for it does not appear but that by the terms of the sale possession was not to pass until after the payment of the purchase-money evidenced by the notes sued on.—Matthews v. Evans, 9 Ala. 643.

Others of the pleas assert that plaintiff had no title to the land for the purchase-money of which the notes were given, at the time of the sale or since or at the time of the •trial. These pleas do not aver that the plaintiff has not executed a conveyance to the purchaser or that, whether a deed has been made or not, the purchaser is not in possession of the land. And in these respects the pleas under consideration can not derive any aid from other pleas which negative the purchaser’s possession, nor from yet others which negative a conveyance to him by the plaintiff. Tested within their own averments, as they must be on the principle announced above, they are bad on two grounds. First, for aught that is alleged, the purchaser has received a conveyance to the land, and this though the plaintiff may have been without title, and in that case the want of title in plaintiff would be no defense to this action.—Cullum v. Branch Bank, 4 Ala. 21; Stark v. Hill, 6 Ala. 785; Patton v. England, 15 Ala. 69; Kelly’s Heirs v. Allen, 34 Ala. 663. And in the second place, it was essential to the purchaser’s right to defend this action because of the plaintiff’s want of title that he should have been out of possession, and this these pleas fail to aver.—Larkin v. Bank of Montgomery, 9 Port. 434; Clements v. Loggins, 1 Ala. 622; Kelly’s Heirs v. Allen, 34 Ala. 663.

The defendants further pleaded that the purchaser of the land had not received any conveyance from the vendor. The insufficiency of this fact, standing alone as it does in the pleas filed here, to constitute a defense to the action was adjudged by this court in the strikingly similar case of Hardy v. Branch Bank, 15 Ala. 722; and we can not do better" than to rest our concurrence in the trial court’s judgment on the demurrers to these pleas upon that case and the reason given for the conclusion there reached.

Several of the special pleas rely upon the fact, as averred in them, that at the time of the sale the land was in the adverse possession of third parties who held it under a claim of title, as a defense to the action, on the theories that in consequence of such outstanding adverse possession the sale and the notes were absolutely void, and that, whether so void or not, the fact pleaded involved a failure or want of consideration to support defendant’s promises to pay for the land. There is no merit in either position. The sale was void only as against the adverse holders: as between the vendor and vendee it was a perfectly valid one; and the outstanding possession did not involve or the fact of it demonstrate a want or failure of consideration, for non constat but that the plaintiff will recover the land from those in possession, and transmit the possession thus acquired to the purchaser within the terms of the contract of sale.—Harvey v. Carlisle, 23 Ala. 637; Abernathy v. Boazman, 24 Ala. 189; Yarbrough's Adm'r v. Avant, 85 Ala. 133; Brunson v. Morgan, 86 Ala. 318; Davis v. Curry, 85 Ala. 133.

In respect of the question sought to be made by an assignment of error and in argument "upon the' organization of the jury, it will suffice to say that the point was not raised on the trial or before entering up.on the trial, and, of course, no exception was reserved.—Hawk v. State, 84 Ala. 6.

It was not necessary for the judgment entry to affirm that the jury was duly organized. The organization is shown by other parts of the record, and it is to be presumed that “a jury of good and lawful men” is a properly organized jury.

The rulings of the Circuit Court on-the demurrers to the special pleas are free from error, and its judgment is affirmed;