The Montgomery advertiser., 1901-12-21
STEIN ct al. V. McGRATH, ct al. s Bill in. Equity for Division and Account.
 lng.-Appeal from the Chancery Court

STEIN ct al v. McGHATH, et ai
 " inE.-Hppeal from the chancery Court
 1. BiIi by tenant in common for. sale for division; when right exists.-under common may fle bill in equity. for sale. for the purposes of division, when 1t Is alleged and shown that the propefy ln question can not be equltaDiy aiV,ueui and this is true whether the title be legal
 Same: accounting In such case where the court acquires jurisdiction Tor the purpose of division. 1t may. as insi- dental to the relief sought, call upon the tenant who has been in possession ana enjoyment of the common property TOT an Accounting for the profits derived from the use and enjoymsnt thereof. ;. aso,.. ion on demurrer.--Upon q bill nled ln- volving the validity of certain aroitra- ton proceedings, 1t was held upon 9e- missal of the bill followed, and from this decree no appeal was taken. Held: That such decree was an adjudication of the rights of the parties, binding upon all
 {. Grant of water privileges by munich pality for term of years: effect thereot; right to purchase..-Where municipanty grants the privilege of supplying s water and longer, unless the right to purchase the plant with the franchise after the expiration of such period, upon certain conditions, is exercised. the property ane Franchise remains with the grantee and does not revert to the city until sach conditions have been fulfilled.
 5. Bill in equity for sale for diylslon' bill filed by a tenant in. common for sale for division, a party who purchased the property pending the suit, takes II sun- ject to the litigation. nor does sucn. pur- chase defeat the rights of other parties to the cause to have the same proceed to a final determination, just as 1T there had been no purchase, since the pur- chaser is bound by whatever decree IS
 G. Same: disposition by .complainants of their interest pending suit; cross Dlii. The sale by compliments Tn such plll' does not defeat the suit, where one ot the defendants has filed cross niti Seeh- ing the same relief. -..
 T. Same: same; abandonment or cross bill-The respondent in such case Wno makes his answer a cross bill. does not abandon the latter, statement ln ine answer to the effect that he VIII not ln- sist upon his cross bill If he can ootsin S;ii when complainants in the origlnal olIl may have defeated their suit by sale of their interest, and the cause IS sup mitted for decree upon tne n,iI gross oli'' d"
 8. Equity pleading; special oeIense' how raised: Incorporation Of Tn answeg.- Under the Code, Sec. oy9, all Sptctai ue- lenses may be incorporated under the answer, but in order to take advantage of any special defense. an tndepenoe nt piea must be incorporated in the answer or Separately filed. so that the attention of inc opposite may be called to It, ana inc opportunity given to take Issue upon it or test it's sufhciency; .
 g. Same;; replication ;irresponsiVe mat ters set up In answer not by way or snecial plea; cffect.-Since under Cooe. Sec. 7Ol, a replication Is unnecessary m chancery pleading. facts not responslve to the bill that are set out in the answer not by way of special plea, are super fiuous and do not require any action from the complainant ..,-,. l.. o.o.. hill: security for costs.-The complainant in a cross bill who is nonresident, IS not reduired to give security. for costs. matter.-Where bill in equity has pro- oeeded to a final decree, from which an anneai is taken, an original Dill in the nature of a supplemental bill of revivor. filed by one not party to the decree | from which the appeal was taken. IS im- nroperiy incorporated in the transcript, especiaily where no action was taken | upon such bill.
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