Henderson v. H. L. Berry Co. , 145 Ala. 404 ( 1905 )

DOWDELL, J.

The complaint as originally filed contained tAvo counts, to both of which counts demurrers were interposed. Subsequently the complaint was amended by the addition of two other counts, designated as “A” and “B.” Demurrers were also filed to these latter counts. The judgment entry shows a ruling by the court on the demurrers to the first two counts, overruling said demurrers; but no ruling by the court is shown on the demurrers to counts A and B. It Avill therefore be presumed that the demurrers to these counts were withdrawn, or, at least, not insisted on. — 2 Mayfield’s Dig. 131, § 49.

By the former judgment of this court on February 3, 1904, the bill of exceptions was, on motion of the appellee, stricken from the record. With no judgment shown on the demurrers to counts A and B, this leaves only the first and second assignments of error to be considered, which said assignments relate to the rulings of the court on the demurrers to the first and second counts. The first count avers a warranty against incumbrances, but fails to show’ any incumbrance. In alleging a breach of the warranty averred, instead of shewing an incumbrance, an existing, (nitstanding, paramount title is shown at the date of the execution of the deed. The demurrer to this count wTas well taken, and on the authority of Copeland v. McAdory, 100 Ala. 557, 13 South 545, and cases there cited, it should have been sustained. The second count of the complaint is not subject to grounds of objection assigned in the de-' murrer to this count. It is averred that the alleged paramount title existed and was outstanding at the time of the execution of the deed from the defendant to the plaintiff. This excludes the conclusion that the title under which plaintiff was evicted emanated from the plaintiff. — Chestnut v. Tyson, 105 Ala. 168, 16 South. 723, 53 Am. St. Rep. 101.

It is insisted that, if there ivas error in the ruling on demurrers to the first and second counts, it wras error without injury, since there remained counts A and B, under either of which verdict and judgment might be properly rendered. This insistence is not sound. The rule is that, when error is shown, injury will be presumed from such error, unless the contrary affirmatively appears from the record. — 2 Mayfield’s Dig. p. 129, § 20.

For the error pointed out the judgment must be reversed, and the cause remanded.

Reversed and remanded.

Haralson, Tyson, Simpson, and Denson, JJ., concur.