Appeal
from city court of Talladega; G. K. Miller, Judge.
Action
by Talladega Real-Estate & Loan Association against George W
Chambers. From a judgment in favor of plaintiff, defendant
appeals. Reversed.
The
complaint, as originally filed, counted upon two promissory
notes alleged to have been given by the defendant to the
plaintiff on May 23, 1887, and due respectively on May 23
1888, and May 23, 1889. Subsequently, on September 15, 1899
the plaintiff amended its complaint by adding two counts
thereto. This amendment is shown in the opinion. To the
amended complaint the defendant filed 12 pleas. In the first
3 pleas he pleaded the general issue. The fourth plea was as
follows: "Fourth. The consideration of the said
instruments sued on has failed before the institution of this
suit." In the fifth plea the defendant pleaded that the
instruments were without consideration. By the sixth plea he
set up payment of the instruments sued on before the
institution of the suit. The seventh plea is substantially
set forth in the opinion, and it is therefore unnecessary to
set it out in detail. The remaining pleas were as follows
"Eighth. Defendants avers that the consideration of the
said instruments sued on failed, in this, to wit: Said
instruments were given for the purchase money of a tract of
land for which defendant gave the said instruments to the
plaintiff upon plaintiff executing and delivering to him its
bond for title for the said lands. Afterwards a railroad
company, at the request and invitation of plaintiff, took
possession of a portion of the said lands, and the remainder
has since been vacant and in the actual possession of no one.
The said plaintiff has not executed a deed and placed
defendant in possession of the land, and, on account of the
possession of the said railroad as aforesaid, cannot put
defendant in possession of the said tract. The plaintiff has
broken its contract, and defendant is not liable to pay the
said instruments sued on. Ninth. The cause of action set
forth in the said counts as now amended was never set forth
in any complaint of plaintiff until set forth in said
amendment, and was never until said amendment a lis pendens
or embraced in any lis pendens, or claimed by plaintiff as a
ground of recovery or cause of action against the defendant.
And for answer to said amendment and amended complaint, and
to each count thereof separately, the defendant says that the
cause of action therein set forth is on instruments under
seal, and is barred by the statute of limitations of ten
years, and was so barred at and before said amendment and
amended complaint was filed. Tenth. The cause of action set
forth in the said counts as now amended was never set forth
in any complaint of plaintiff until set forth in said
amendment, and was never, until said amendment, a lis
pendens, or embraced in any lis pendens, or claimed by
plaintiff as a ground of recovery or cause of action against
the defendant. And for answer to said amendment and amended
complaint, and to each count thereof separately, the
defendant says that the cause of action therein set forth is
on instruments under seal, and is barred by the statute of
limitations of six years, and was so barred at and before
said amendment and amended complaint was filed. Eleventh. The
defendant, for separate answer to each count of the complaint
as now amended, says that the said instruments sued on are
under seal, and are barred by the statute of limitations of
ten years. Twelfth. The defendant, for separate answer to
each count of the complaint as now amended, says that the
said instruments sued on are barred by the statute of
limitations of six years." To the fourth plea filed to
the amended complaint the plaintiff demurred upon the ground
that said plea failed to set out facts showing the want of
consideration of the instruments sued on. To the seventh and
eighth pleas the plaintiff demurred upon the following
grounds: (1) It fails to set forth the nature of the
agreement which it is alleged the plaintiff made with the
defendant in regard to the railroad building across the lot
sold to the defendant. (2) There was no consideration for the
agreement. (3) That the defendant sought to set up a failure
of the title to the property in suit for the purchase money
while in possession, without showing that the plaintiff was
insolvent. (4) That the plea failed to set forth the nature
and extent and character of the damage done to the defendant
by the railroad building across said lot. (5) Said plea
showed that the railroad was the one who was liable, if any
one was, for building across his lot. The plaintiff demurred
to the ninth and eleventh pleas on the ground that the
amended counts of the complaint related back to the filing of
the original complaint, and that it was shown that at the
time of the filing of the original complaint the notes sued
on were under seal, and that therefore the action was not
barred by the statute of limitations of 10 years, and that
the amendment did not introduce a new cause of action, but
simply changed the description of the instrument sued on. To
the tenth and twelfth pleas the plaintiff demurred on the
ground that 6 years was no bar to a suit upon instruments
under seal. These demurrers, as interposed to the
defendant's several pleas, were sustained, and to this
ruling the defendant duly excepted. Thereupon the defendant
amended the fourth and eighth pleas. The fourth plea, as
amended, was in words and figures as follows: "Defendant
avers that the said instruments sued on were made and given
by the defendant to the plaintiff as a part of the
consideration for block No. five (5) of the Morrefield
addition to the city of Talladega, which said block is
composed of _____ lots, and said block fronting upon the
extension of Battle street, which said extension of Battle
street was the property of the said plaintiff at the time of
the said sale to defendant, and was platted as a street by
the plaintiff, upon a certain map of its property, including
said block five (5), and which map, duly certified according
to law, was then, and is now, recorded in Book of Land Plats
vol. 1, on page 1, in the office of the judge of probate of
Talladega county, Alabama; that at the time of the said sale
of the said block to the defendant the said block was
unoccupied, and no one was in the actual possession thereof;
that at the time of the said sale and the giving of said
instruments the plaintiff made and executed and delivered to
this defendant a bond for title to the said block five,
wherein it agreed, upon the payment of the said balance of
purchase money, it would execute and deliver to the defendant
a deed to the said block five, with warranty, conveying the
same to defendant in fee simple; that afterwards, on, to wit,
the 14th day of February, 1891, the said block was vacant,
uninclosed, and not in the actual possession of any one, and
the plaintiff did then and there sell and convey to the
Alabama Mineral Railroad Company, a body corporate, the right
and privilege of locating, building, and operating a railroad
in and upon the said extension of Battle street where the
said block 5 fronts thereon, and that the said railroad
company did then and there take possession of a strip of land
in and through said street at said point in width, to wit,
twenty (20) feet, and did build thereon an embankment about
five (5) feet high by, to wit, 15 feet wide, and did place
upon said embankment a line of railroad; and that the said
railroad company has ever since then maintained and operated
a railroad in said street along said embankment and line of
railroad, and is now, and has been ever sine then, in the
actual and adverse possession of the said strip of land
through the said street. And defendant alleges that he was
not at the time of the bringing of this suit, nor at any time
since the said sale and conveyance to said railroad company,
nor is he at the present time, in possession of the said
land, or any part thereof. Defendant alleges that one-half (
1/2) of the said embankment and railroad track was located
and is upon that half of the said street which lies next and
is adjacent to the said block No. five. Defendant further
alleges that the said embankment in the said street, and the
location of the said railroad thereon, had practically
destroyed the value of the said lots, so that the same cannot
be sold or used for the purpose of building thereon.
Defendant further alleges that the consideration that he was
to pay for the said block was twelve hundred dollars
($1,200), and that at the time of said purchase and the
giving of said instruments he paid in cash to the plaintiff
the sum of four hundred dollars ($400). Defendant alleges
that, by such action in the conveyance of said strip of land
to the said railroad company by the plaintiff, the said block
of land is worth only, to wit, $200, and that therefore the
consideration of said instruments has wholly failed."
The eighth plea, as amended, was substantially the same as
the fourth plea, with the following additional averment:
"Defendant alleges that, by such action in the
conveyance of said strip of land to the said...
