Smart v. Kennedy , 123 Ala. 627 ( 1898 )

HARALSON, J.

1. HoAvever it may be in. other, jurisdictions,- in Alabama the rule is, changing the- common laAV rule on the subject,.that tAvo judgments in ejectment, or statutory action in the nature of-ejectment, in favor of the defendant, bars a subsequent .action - he* tAveen the same parties or their-privies for the recovery of the same (land founded on the same title —Onde, § 1554 (2714). Accordingly it was .held, in Harper v. Campbell, 102 Ala. 342, which, was a bill in equity-to, enforce a vendor’s lien,- — after the complainant, in an action of ejectment by him in the circuit court, against, the same defendant for the recovery of the same.land,: had failed, — that the verdict and judgment in the eject ment suit, was not conclusive as to the equitable rights- and relations of the parties; that the. suit could be-maintained or defended only on a legal right to the posses-sion, without regard to the equities -of the. parties, -and that the verdict and judgment are conclusive only, that the appellee-had not, at the commencement of the suit; the legal right to the possession.

In Williamson v. Mayer, 117, Ala. 253, which Avas a second suit by the plaintiff against the defendant for the recovery of the same land, payment of the mortgage debt having been specially pleaded in the first suit,, we-held, that if the jury found in that case .that the mortgage debt had been paid, that fact would not, more than any other finding under the general issue, which was also pleaded, bar the plaintiff's right to bring’ another action for the land. See also, Boyle v. Wallace, 81 Ala. 352.

2. Section 2296 of the U. S. Revised Statutes provides, that “No lands acquired under the provisions of this chapter [having reference to homesteads] shall in any event become liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor."

The defendant's plea sets up that he had entered these lands and received a patent for them from the government, on the 10th day of June, 1892, about two months after the execution of said mortgage. From the plea we are to infer he had done everything, to perfect his entry, and nothing remained to be done by him, and nothing by the Government, except to issue the patent to Mm. If he acquired the lands under the homestead act of the government, as we infer from his plea he did, it would seem he had done all the law required for the issuance of the patent, and he must have held a certificate therefor, which vested in him a fee to' the lands, which was alienable by him.—McCollum v. Edwards, 109 Ala. 322, 324. The patent when issued, shortly after the mortgage was given, enured to the benefit of the mortgagee. This section of the Revised Statutes upon which defendant rests his plea, we find has been construed in other jurisdictions, as manifestly intended for the protection of the entryman, to prevent the appropriation of the land in invitum, to the satisfaction of debts incurred anterior to the issuance of the patent, and that a mortgage given upon a government homestead after a final certificate has been issued, but before the reception of the patent, is efficacious.—Lang v. Mony, 40 Minn. 396; Townsend v. Fenton, 30 Ib. 528; Moore v. McIntosh, 6 Kan. 39; Nycum v. McAlister, 33 Iowa 374; Cheney v. White, 5 Neb. 261; Kirkaldie v. Larrabee, 31 Cal. 455.

3. The defendant filed no exception, and has not questioned the first plea filed to the maintenance of the bill, and we are not called, therefore, to consider its sufficiency. For the purpose of another trial, however, it may be well to call attention to our adjudications on tbe subject.—Read v. Rowan, 107 Ala. 366; A. F. L. M. Co. v. James, 105 Ala. 347; Jinwright v. Nelson, Ib. 399.

Reversed and remanded.