Harper v. Campbell , 102 Ala. 342 ( 1893 )

STONE, G. J.

There was a demurrer interposed, assigning among other causes that the contract of purchase of the lands was offensive to the statute of frauds ; but this demurrer does not appear to have been called to the attention of the chancellor. He made no ruling or decision thereon. The presumption on error is that the demurrer was waived. — Corbitt v. Carroll, 50 Ala. 315; Daughdrill v. Helms, 53 Ala. 62. If this presumption was not indulged, the demurrer is bad, obviously. The averment of the contract in the bill is general, not stating whether it was written or verbal. The statute of frauds is not available as a cause of demurrer, unless it affirmatively appears from the averments of the bill, that the contract or promise was not in writing. — Bromberg v. Heyer, 69 Ala. 23; Phillips v. Adams, 70 Ala. 373; Manning v. Pippen, 86 Ala. 357, 5 So. Rep. 572. The defense of the statute, if not raised by plea or by the answer, is not available on the hearing, though it may appear from the evidence that the contract was only verbal. — Shakespeare v. Alba, 76 Ala. 357, and cases cited.

2. The verdict and judgment in the ejectment suit, was not conclusive as to the equitable rights and relations of the parties. That suit could be maintained or defended only on a legal right to the possession, without regard to the equities of the parties. — 3 Brick. Dig. 324, § 27 et seq. The verdict and judgment are conclusive only that the appellee had not at the commencement of the suit the legal right to the possession.

We find no error in the record prejudicial to the appellant, and the decree must be affirmed.