Barney v. Earle, et al. ing an examination of the file, and with which the register was supposed to be conversant. It does not restrict the power of the chancellor over the injunction. It is however proper in such cases, to give the defendant the benefit of all exceptions well taken to the answer, and to consider it as though they had been sustained. If, allowing the exceptions, the answers still deny all the equity of complainant's bill, the injunction should be dissolved; and in cases where a discovery is sought, which defendants fail to make, and which if made in conformity with the allegations of the bill, would influence the court in its action upon the injunction, the court should, for the purposes of the motion, regard such allegations as confessed. But in no event could the pendency of exceptions oppose an objection to dissolving the injunction, unless they affect the answer in points relating to the ground of the injunction, and if the exceptions are frivolous, they will furnish no objection to a motion to dissolve. See 1 Barb. Ch. Pr. 642; Hop. Ch. Rep. 276; Ross v. Smith, cited 1 Hoff. Pr. 357, n. 1. The note upon which the suit at law has been instituted, being payable and negotiable in bank, is placed by our statute upon a forting with bills of exchange. The defendant, Ware, in answer to the direct allegation of the bill, which avers he acquired it as collateral security for a pre-existing debt, avers that he acquired it long before it was due, in the regular course of trade, and for a valuable consideration, viz: in payment of a debt due from J. B. Earle to him. He also states that Rives, Battle & Co. have no interest in the note, but are merely his agents to collect the same. He further denies all notice of any fraud or force, by threats or otherwise, in obtaining the note. Besides, he appends to his answer a copy of a letter written by the plaintiff in error to him, dated 28th December, 1845, by which he fully acknowledged the justness of the demand, and asked indulgence until he could raise funds out of the sale of his cotton, to adjust it. Having received the bill, or note, in payment of a debt, Ware is to be regarded a bona fide holder without notice, and the inquiry, in this aspect of the case, so far as concerns him, whether the bill was obtained by fraud or force from Barney, the plaintiff, is wholly immaterial-he is bound to pay it to Barney v. Earle, et al. the bona fide holder. 2 Kent's Com. 79, 80; Story on Bills, § 188, 192, and authorities there cited. Allowing therefore all that the complainant states in his bill' as against Earle, to be admitted, it can have no effect as against Ware, and it follows that the exceptions filed to Earles answer cannot prejudice Ware's right to dissolve the injunction: The answer of James W. M. Battle, for the firm of Rives, Battle & Co. is in effect but a disclaimer of all interest in the note and subject matter of the suit, which may as well be made by one as by all the partners. Reynolds v. Dothard, 11 Ala. R. 531. There are but two exceptions filed to the answer of Ware, one is for impertinence in this, that he answers, "if complainant had been defrauded by Joseph B. Earle, in obtaining the note, he ought to have discovered the same between the 25th Earch, 1842, the date of his note, and the 28th December, 1845, the date of his letter promising to pay the same to this defendant, and if he was in duress at the time of the date of said note, his fears must have been greatly excited, to have continued from March, 1842, to December, 1845." The second exception, for the same cause, (impertinence,) is, that in his answer he states, "he regards the bill filed by the complainant, as a dishonest attempt to evade the payment of a debt justly due." Neither of these exceptions, if well taken, (and we are not called upon to express any opinion as to whether they should be sustained,) affects the merits of the case upon which the injunction rests. If the supposed exceptionable parts of the answer were stricken out, the case would stand precisely where it now does. We think, therefore, the decree of the chancellor, dissolving the injunction, was correct, and it is consequently affirmed. DARGAN, J., did not sit in this cause. Camp v. Forrest and another. 13 114 94 160 13 114 102 308 13 114 117 259 CAMP v. FORREST AND ANOTHER. 1. The judgment in an action of trespass to try title, has no greater effect, as a bar to another action for the same land, than a judgment in ejectment. 2. A sale of land by one in possession, is not void at common law, because an action is then pending for the land against the vendor. Writ of Error to the Circuit Court of Jefferson. Before the Hon. J. D. Phelan. THIS was an action of trespass to try titles to a lot situated in the town of Elyton. The cause was tried on the plea of "not guilty," a verdict returned for the defendants, and judgment rendered accordingly. From a bill of exceptions sealed at the plaintiff's instance, it appears that the premises were sold by the sheriff of Jefferson, on the first Monday in June, 1840, under an execution issued on a judgment against Jonathan Steele-at that sale Jonathan B. Badger became the purchaser, and received the sheriff's deed. Plaintiff then introduced and proved a deed from Badger to himself. Defendant admitted he was in possession of the premises when this action was instituted, and that the rent was worth $75 per year. The defendants then introduced a judgment against Messrs. Steele & Adkins, recovered in the district court of the United States at Tuscaloosa, on the 1st of December, 1840, and execution issued thereon, and a deed by the marshal to the defendant, Thomas M. Lyon, dated the 10th August-Lyon having purchased at a sale by the marshal under that execution. Defendant then offered the record of a former trial, wherein Lyon was plaintiff and Badger was defendant, (see case reported 7 Ala. Rep. 564,) which it was admitted was for the premises in question. Plaintiff then proved, that on the trial of the case referred to, Badger did not offer to show any title in himself, or any one else; but the suit went off under the plea of not guilty, Camp v. Forrest and another. as stated in the bill of exceptions, which was then sealed. The deed from Badger to the plaintiff was made some considerable time after the commencement of the suit of Lyon against Badger. The court charged the jury, that the pendency of the suit of Lyon against Badger, at the time the deed from Badger to plaintiff was made, and the recovery as aforesaid in that action, was sufficient to bar and defeat the present action. T. D. CLARKE and W. S. EARNEST, for the plaintiff in error, contended-1. Two things must concur to make a judgment in one suit a bar to the presecution of a second: First, that the question was within the issue in the first suit. Second, that the same matter was actually submitted to, and passed upon by the jury in the first suit. And parol evidence is admissible to show, that the matters sought to be litigated in the second suit were not actually passed upon in the first. Sedden v. Tutop, 6 Term, 607, (3 Dur. & E. 608;) McGauren v. Patterson, 6 Serg. & R. 278; Snider v. Croy, 2 Johns. 227; Phillips v. Bevick, 16 Ib. 136; Davidson v. Shipman, 6 Ala. R. 27; Rake's adm'r v. Pope, 7 Ib. 161; Burt v. Sternberg, 4 Cow. 559; Ravee v. Farmer, 2 Black's Rep. 827; Lawrence v. Hunt, 10 Wen. 80; Le Guen v. Governeur, 1 Johns. C. 436; Henderson v. Keener, 1 Rich. Rep. 474; 8 Pick. Rep. 118. 2. If a defendant, having the means of defence, but neglect to use them, he is precluded-except the case of ejectment in which the defendant neglecting to bring forward his title, is not precluded by the recovery against him, from availing himself of it in a new suit. Kent, J., in Le Guen v. Gouverneur, 1 Johns. C. 436, at page 502; Clerk v. Rowell, 1 Mod. R. 10; Adams's Eject. 294, 315. And the same law applies to this action. Clay's Dig. 320, § 44; The Ltate, et ux. v. Nabors, 7 Ala. Rep. 459; Sturdevant v. Murrell, 8 Por. 317. In this case, Badger's title (now Camp's) was not in the first suit, in any way submitted to the court or jury, or passed upon by either. He offered no title or evidence in the first suit. See bill of exceptions in Badger v. Lyon, 7 Ala. Rep. 564, and bill of exceptions in this case. Camp v. Forrest and another. 3. Badger held the superior title to the freehold, coupled with actual possession, at the time of the sale to Camp. See bills of exception in the two cases. He therefore might properly and lawfully sell to Camp, and Camp acquired the same title Lyon had. No rule of law as to adverse possession-sale of chose in action-applies to this case, or makes the conveyance void. It is the case of one holding the actual possession, selling a good title, while another, who has no title as against the vendor, chooses to prosecute a suit against him. As to what will make the conveyance void-Brown v. Lipscomb, 9 Porter, 472; Goodwin v. Lloyd, 8 Ib. 237. E. W. PECK, for the defendant in error. 1. This action is expressly made by the statute, an action to try titles to try the titles not of the plaintiff only, but of the defendant also-and the judgment must necessarily be conclusive upon the parties, as to titles upon which judgment is actually given, and also upon the titles then in the parties respectively, and properly determinable. True, if the plaintiff should fail because no trespass, or in other words, no ouster was proved, or because the defendant was legally possessed of an unexpired term, and the title of the plaintiff was a remainder, in such cases, and others of a like character, the judgment would not be conclusive; but these exemptions cannot affect the general rule. It would be repugnant to every principle of justice and public policy, to permit a party to withhold his title, and refuse to give it in evidence, and thus to avoid the conclusive effect of the judgment.-Kent v. Kent. 2 Mass. 338, 347, 355; Adams v. Burns, 17 Mass. 365; Cummings, et al. v. McGehee, 9 Porter, 351; Adams on Ejectment, by Tillinghast, 315, 316, and the notes there referred to. Again, in the case of Pollard v. Reynolds, et al. 6 Munf. 433, it is said that a judgment in ejectment is no bar, though for the same land, and between the same defendant and lessors of the plaintiff-the fictitious plaintiff not being the same—and Mr. Adams, in the page first above referred to, gives the same reason why, in the action of ejectment the judgment is not conclusive, but the same reason does not ex |