New v. Driver

• Decision Date: 26 November 1912
• Citation: 60 So. 798,180 Ala. 176
• Parties: NEW v. DRIVER.
• Court: Alabama Supreme Court

60 So. 798

180 Ala. 176

NEW v. DRIVER.

Supreme Court of Alabama

November 26, 1912

Rehearing Denied Feb. 13, 1913.

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill in equity by Charley New against Joseph B. Driver. From a decree in favor of defendant, plaintiff appeals. Affirmed.

Frederick G. Bromberg, of Mobile, for appellant.

Gregory L. & H. T. Smith, of Mobile, for appellee.

DE GRAFFENRIED, J.

In the case of Driver et al. v. New, 57 So. 437, the appellee New filed a bill in equity to enjoin the appellants Joseph B. Driver et al., from committing trespasses upon lands of which the said New was in the actual possession. In that case the bill alleged that the trespasses sought to be enjoined were of such a continuous character as to call for equitable relief. The case was submitted on its merits, the chancellor granted a decree enjoining said Joseph B. Driver et al. from further trespassing upon the land until the title to the land could be "determined by a proceeding at law brought within a reasonable time." This court, upon appeal, simply affirmed the decree of the chancellor without alteration or modification. In the above case the appellants Joseph B. Driver et al., as a defense to the suit, set up title to the land, but this court, in terms as plain as the English language could make them, declined--as the chancellor, in his decree, had declined--to consider the question of title. This court found--as the chancellor had found--that the appellee, New, was in possession of the land and, declining to consider the question as to where the title resided or by what instruments it was evidenced, held that the chancellor "properly granted the temporary injunction until the title of the land can be determined by a proceeding at law brought within a reasonable time."

The above being the situation, the appellee, Driver, brought an action of ejectment against the appellant, New, for the possession of said lands. Thereupon the appellant, New, filed this bill, praying, among other things, that the appellee Driver, be enjoined from using as muniments of his title in said ejectment suit, two deeds which had been introduced in evidence in said case of Driver et al. v. New, supra, upon the ground that the decree of the chancery court and of this court in that case had established the invalidity of said deeds. While the chancery court and this court may have arrived at the...