Cofer v. Schening

• Citation: 13 So. 123,98 Ala. 338
• Parties: COFER v. SCHENING.
• Decision Date: 02 May 1893
• Court: Supreme Court of Alabama

13 So. 123

98 Ala. 338

COFER v. SCHENING.

Supreme Court of Alabama

May 2, 1893

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Statutory ejectment by Mollie M. Cofer against Christopher Schening. Defendant had judgment, and plaintiff appeals. Affirmed.

This action was commenced October 30, 1888. The defendant pleaded the general issue, and, by special plea, that at the time of the commencement of this suit the plaintiff was restrained from the possession of the premises sued for by writ of injunction issued in a cause then pending in the chancery court of Cullman county, in which the said Christopher Schening was complainant and Mollie M. Cofer, plaintiff here was defendant; that said injunction was issued and served on January 13, 1888. Upon the trial of the cause, as is shown by the bill of exceptions, the plaintiff introduced in evidence three promissory notes, and a mortgage made to secure the same, which conveyed the land here sued for, which were executed by Christopher Schening and his wife to one Baxter Shemwell. The notes and mortgage were executed on May 12 1887, and on the same day they were transferred by indorsement on the back of each by Baxter Shemwell to Mrs Mollie M. Cofer, plaintiff in this suit. The defendant offered in evidence the transcript from the chancery court at Cullman court, Ala., showing that on January 12, 1888, the defendant, Christopher Schening, and other filed a bill in the chancery court against Mary M. Cofer, the plaintiff in this suit, and Baxter Shemwell. The purpose of the bill was to cancel the notes and mortgage above described on the ground of fraud in their procurement, and the plaintiffs prayed for an injunction to enjoin the sale of the property involved in this suit. The certificate of said transcript which was duly signed by the register, was in the following language: "I, Chas. J. Brown, register in chancery in and for said county and state, hereby certify that the foregoing pages from one (1) to thirty-seven, (37,) inclusive, contain a full, true, and correct transcript of said papers in the cause of Christ. Schening et al. v. Mollie M. Cofer et al. in said chancery court, and of the proceedings of said court upon the same. Witness my hand this 22d day of July, 1891." The plaintiff objected to the introduction of said transcript because the proceedings shown therein were illegal, irrevelant, and immaterial, and because the certificate did not show that it was a full, complete and correct transcript in said cause. The court overruled this objection, and plaintiff duly excepted. The transcript so introduced in evidence showed that the order of the register of the chancery court of Cullman county for the issuance of a writ of injunction prayed for in the bill was made by "Samuel E. Green, judge of the criminal court of Jefferson county, Alabama." The plaintiff objected to this order, "because the same was not made by any officer authorized under the laws of Alabama to grant an injunction." The court overruled this objection, and the plaintiff excepted. The testimony for the defendant further tended to show that on January 13, 1888, a writ of injunction was issued by the register in chancery of the county of Cullman, after the execution of a bond, in accordance with the order of Samuel E. Green, judge, as aforesaid, and that the same was served on the date of its issuance. It was further shown that on November 17, 1888, the chancellor granted the motion of the defendant in the above-stated chancery suit, and dissolved the temporary injunction upon the denials of the answer; and that on May 3, 1890, the bill of complaint was dismissed out of the chancery court. The cause was tried, as is shown by the bill of exceptions, at an adjourned term of the circuit court of Cullman county, and was held from July 20 to July 25, 1891. Upon the introduction of all the evidence, the court, upon its own motion, stated to the attorneys of the defendant "that, in order to sustain the action of ejectment, plaintiffs, at the commencement of the suit, must not only have the legal title but must have the right to the possession; and, it appearing from the evidence that, at the commencement...