[Turner Coal Co. v. Glover.] petition, on the ground, that it did not aver that the defendant was prevented from making his defense at the trial of the cause by surprise, accident, mistake or fraud; and did not set up any facts or fact showing in what way surprise, accident, mistake or fraud prevented the defendants from making the defense. John F. Glover, in response to the petition, filed his affidavit in which he swore that the mortgage referred to in the petition had been paid and satisfied in full, and that nothing was due upon the same, for a long time prior to the institution of this suit; and that the real estate from which the trees were cut was, at the time of the institution of this suit, and was at the time of making of the affidavit the property of the plaintiff. The court refused the petition, and denied the application for a new trial. A. LATADY, for appellant. WADE & VAUGHAN, contra. HARALSON, J.-The 5th count in the complaint was withdrawn before the court passed on the demurrer to it. A new count, No. 6, was filed in substitution for No. 5, stricken out by amendment. The defendant, thereupon, demurred to the complaint, as thus amended, on the specific ground, that counts 1, 2, 3 and 4 are in debt, and the 6, in assumpsit. There is evidently a misjoinder of counts. The four first are causes of action for debt, proper in a case of this kind, and the 6th is in tort. It was not framed under section 3296 of the Code, as were the others. The demurrer is, "that there is a misjoinder of counts." If it had stopped there, without stating in what the misjoinder consisted, it would have been general, and faulty under section 2690, which forbids any objection by way of demurrer to be taken or allowed, which is not distinctly stated. Here, however, the defendant proceeded and stated distinctly, what the ground of its demurrer was, viz., that the four first counts were actions in debt, and the 6th in assumpsit. The defendant had the privilege of not demurring at all. It is one he may waive. When he demurs for a wrong reason, he waives all others, even if good; for, under our rulings, this court, under said section of the Code, is prohibited from con [Turner Coal Co. v. Glover.] sidering any other objection than the one specified to which a plea or complaint may be subject; and, not being subject to the objection specifically stated, the demurrer must be overruled.-Lakeside Land Co. v. Dromgoole, 89 Ala. 507, 7 So. Rep. 444. In Eads v. Murphy, 52 Ala. 524, it is said: "When a demurrer is interposed, the court, can not consider any other objection than is specifically stated. However insufficient the pleadings may be, in other respects, if it is not obnoxious to the particular objections assigned, the demurrer must be overruled." The purpose of the rule is, to have defects pointed out, to give the party pleading an opportu nity to cure them by amendment, if it can be done.Sledge v. Swift, 53 Ala. 114. The demurrer to the complaint was properly overruled. This action was brought under section 3296 of the Code, which has received construction at our hands. In Rogers v. Brooks, 99 Ala. 31, 11 So. Rep. 753, it was held that a complaint which avers that plaintiff is the owner of the land from which the trees were cut, stating their number and description, and that they were willfully and knowingly cut by defendant, without plaintiff's consent, contained all the facts required to be alleged by the statute, and will be treated as being an action in debt. In Allison v. Little, 93 Ala. 152, 9 So. Rep. 388, it was held, that the right of action under said section of the Code is given, not to the person in possession, but to the owner of the land, whether he was in possession or not at the time of the commission of the trespass. The demurrer to the complaint having been overruled, the defendant pleaded specially that one Coleman T. Lantrip was seized of the lands described in the complaint, and before the alleged trespass conveyed to R. H. Turner the coal, iron ore, and other minerals on the lands, with the right to enter on the lands and open drifts, slopes and shafts for the purpose of mining coal, iron ore and other minerals, and, also, all the timber and water on the same, necessary for the development, working and mining of coal, iron ore and other minerals, and the preparation and removal of the same for market, and the right to build roads over the same, necessary for the convenient transportation of all such mineral products to market, also, the right to build houses for all machinery; and that "said Turner by deed duly executed con [Turner Coal Co. v. Glover.] veyed the same to defendant. And said plaintiff, claiming said lands by color of a parol demise for ten years, by the said Coleman T. Lantrip, made to him long before the conveyance aforesaid by Coleman T. Lantrip to said R. H. Turner, entered on the lands above mentioned, and was possessed of the same, and defendant, afterwards, entered upon plaintiff's possession, as lawfully it might, in manner complained of by said plaintiff and cut timber, as lawfully it might, and this is the injury complained of," and for which the plaintiff sues. The plaintiff demurred to this plea on many grounds, two of which,--the 6th and 7th,-are, that "it is not averred in said plea, that it was necessary to cut said timber for the development, working and mining of said coal and iron and other minerals, and the preparation of same for market and their removal," and, "because it is not averred, that said timber was cut and used for the necessary purposes set forth in the foregoing ground of demurrer." The court sustained the demurrer on these grounds, and the defendant asked and was permitted to amend his plea, so as to meet these defects raised on de murrer. The demurrer was properly sustained, for an averment of the right to cut the timbers for necessary purposes of development is not an averment that they were cut for such purposes. But, if there was error in the ruling, it is without injury, since the defendant insists in argument, that the plea, when properly and legally construed, means all that the plaintiff by his demurrer insists it did not contain, and that, in substance and effect, it was the same before as after amendment. The plaintiff replied to the plea as amended, “That at the time of the said Coleman T. Lantrip's pretended sale to R. H. Turner, and said Turner's pretended purchase from him, (under and through whom the defendant claims its right to cut said trees and timber), that the said Lantrip did not have the title or right to said timber and trees, nor the right nor title to the surface of said land whereon said trees were located and from which they were cut, * * * but that the right and title to the same, were in plaintiff," etc. This replication was, perhaps, unnecessary, as the plaintiff might, possibly, have availed himself of the same facts, by joining issue on defendant's plea; but, be that as it may, the [Turner Coal Co. v. Glover.] replication was cautionary, and was, if true, a complete response to the plea. The plea sets up title to the surface of the land and shows, specifically, how defendant derives such title-through Turner, and he through Lantrip. The replication denies that Lantrip had such title in the land and trees as he claimed, which, at the time of the alleged sale, he could convey to defendant; and avers that plaintiff was the owner of the same, by conveyance from said Lantrip, previous to defendant's conveyance from him. The replication was not subject to the demurrer, as the same was interposed by defendant, and the court committed no error in overruling it. The defendant declined to take issue on, or in any manner plead to said replication. It is unnecessary to consider the other assignments of error. The plaintiff introduced evidence tending to prove that he was the owner of the lands from which the trees were cut, and the allegations, generally, of his complaints, and the facts set up in his said replication; but, much of the evidence, which, it is said, was offered and admitted, is not set out in the bill of exceptions, and it is not stated that the bill contains all the evidence that was introduced. We must presume that there was sufficient evidence introduced to sustain the judgment rendered by the court, and the judgment is affirmed. The case between the same parties, No. 322,-submitted by agreement and tried with the foregoing case, No. 296,-is a petition for a re-hearing in the last named case, under section 2872 of the Code. The petition fails to show that the defendant was prevented from making his defense by surprise, accident, mistake or fraud without fault on his part.-Ex parte Wallace, 60 Ala. 267; Waldrom v. Waldrom, 76 Ala. 289; Barron v. Robinson, 98 Ala. 351. Even if defendant had known about the fact, on account of which he applies for a rehearing, viz., that there was a mortgage on the land from which the trees were cut, given by the plaintiff and his wife to a third person, it would have been of no avail as a defense to him; for the mortgagor, whether before or after the default, is regarded as the owner of the property mortgaged against all persons, except the mortgagee.-Allen v. Kellam, 69 Ala. 443; Comer v. Sheehan, 74 Ala. 457; Marks v. Robin [Keyland v. Keyland.] son, 82 Ala. 69, 2 So. Rep. 292; Cotton v. Carlisle, 85 Ala. 177, 4 So. Rep. 670. If more were needed, the affidavit of J. F. Glover shows that the mortgage was on record at the day of the trial, and had been for a long time; that the same has been paid and satisfied in full, and that the mortgagee has no claim on the land or interest in it. There was no error in refusing the prayer of said petition. It was wholly insufficient for the relief it sought. Affirmed. Keyland v. Keyland. Final Settlement of an Executorship. 1. Written affidarit inadmissible without proof of its execution.—An affidavit containing admissions made by a decedent is not admissible as evidence on the final settlement of his estate, without proof of its execution by the deceased; and the fact that the affidavit bears the certificate of a notary public of subscription and verification, is not efficacious to make the writing self-proving. APPEAL from the Probate Court of Mobile. On June 1st, 1876, Wm. Keyland executed and delivered to his mother, Sarah McStraffick, the following note: "$1000.00. MOBILE, ALA., June 1st, 1876. On demand we promise to pay to the order of Sarah McStraffick one thousand dollars. Negotiable and payable at Mobile Savings Bank. Value received. WM. KEYLAND & Co." On February 3, 1877, said Wm. Keyland also executed and delivered to his mother another note in words and figures as follows: "MOBILE, ALA., Feb. 3d, 1877. "One day after date we promise to pay to the order of Sarah McStraffick, two hundred and fifty dollars, at 8 per cent. per annum until paid. Value received. Negotiable and payable at Mobile Savings Bank. WM. KEYLAND & Co." |