The Montgomery advertiser., 1907-03-26

error.
 2. Appeal: review; matters not shown by reoord.--where the record falls to disclose when the appearance was en- tered. the failure of the court to grant plaintiff a judgment on account of de- fendant's failure to enter an appear ance within the time required by law, cannot be reviewed on appeal
 8. Judgment; default of appearances: waiver of objection.--Both parties t~ the action announced ready for triai and plaintiff entered motion to strike defendants demurrers from the file. Plaintiff then moved for judgment because of defendants failure to enter an appearance within the time required by law. Held. plaintiff waived the ir- regularity by his former action.
 l. Justices of the peace: action on official bond; suficiency of complaint The justice of the peace and his bonds- men were sued. the complaint alleging that he uniawfuily and wrongfully is- plaint was demurTable in failing to state what the unlawful acts were.
 Appeal from Jefferson Circuit Court.
 Heard before Hon. A. H. Alston.
 Affirmed. Opinion by Dowdell, J.
 Tyson. c. T. and Anderson and Me- C1ellan. u. concur.
 BURR, ct al vs. HANOVER NATlONAL
 BANK, ct al.
 Bill to Foreclose Mortgage (Decided
 November 29th. tso6.--42 So. Rep.
 l. Equity: practice; entry of decree. --In suit to foreclose a mortgage. re- spondent and complainants entered into an agreement stating the amount due complainant, that compliments were etitled to the security of the mortgage. that complainant intenoed 10 ilie < bill to foreclose. that the bill was not filed at the time of making the agree ment by request of the respondent but that if the mortgage was not paid the bill should be filed on the first day of the next term of the chancery court, and as part of the consideration the respondent agreed to accept service of the filing of the bill as of the date of the agreement and waived notice of the issuance or service of summons. Upon the filing of the bill according to agreement and without taking a decree pro confesso for want of an answer, the cause was submitted to the chan cellor for final decree. Held, no am | swer having been filed and no decree pro confesso taken, the cause was not properly submitted.
 2. Evidence; documents; authori- cation.-Under Section 1792, Code IS96. the agreement in this case was not l competent as evidence where the only proof of its execution was an exparte l affidavit made out of court before the bill was filed.
 Appeal from Shelby Chancery Court. Heard before Hon. R. B. Kelly. Reversed and demanded. Opinion by | Dowdell. J.
 Tyson, c. J. Anderson and Mcclellan. | IL. concur
 Il
 GULF RED CEDAR LUMBER CO. ct
 al, V. CRENSHAW, ct al.
 Bill by Co-Tenants for an Accounting | for Standing Timber Cut and Re- moved; for Discovery in Aid of the i Accounting, and for Injunction 1 Against Further Removal.
 oided May 17, 1so6 No. 42 St. Rep. 564.)
 | Deeds; delivery; pleading; aus- gations of non-delivery Where the l bill contained an averment of facts f going to show a delivery of the decd and such averment of facts has been held proof against demurrer, a plea thereto. alleging that the deed was l never delivered to the grantees there- | in, Is insufficient
 2. Same; reservation in favor of l grantor; construction.-The life tenant being without power to sell the grow | ing timber on land. plea alleging that | the grantor in a deed conveyed the premises to his children with res- | ervation of possession of the land in 1 the grantor until the youngest chfld becomes of age, or during the life of | the grantor, Is insufficient as an an- l swer to a bill by tenants in common for an accounting against the co-ten- ant for cutting and removing stand ing timber from the land. 3. Equality; Jurisdiction; suit for an | laka title.-A court of equity having juris- risdiction of suit by tenants in com | mon against a co-tenant for an &C., | counting for the cutting and removing of standing timber on the land, it's tu- risdfction is not busted by a plea set ting up an issue as to the title, as the 1 court may proceed and determine the whole question, including that of title. 1. Tenancy in common: mutual rights of co-tenants; adverse possess ] sion Where one of several co-ten- ants executes a deed to a third per- son conveying the entire estate to such person, the possession of the third per son, under the conveyance. is adverse to the other co-tenant.
 Same.-A father conveyed land to his five children, reserving the right to convey any portion of the same and reinvest in other property for the ben- eft of the children. Subsequently,, the Idll0T anu some OI the CnllOren con- veyed to a third person the right to cut timber on the land for a period of ten years. Before the expiration of that period the time within which the timber might be removed was extend ed. Held, that the grantee in the deed conveying the timber, and those claim ing under him, not having an absolute and unconditional title, but the hold ing being subject to a condition or contingency, were not in adverse pos- session as against the children not joining in the conveyance.
 Rehearing denied December 6, 1906.
 Apeal from Butler Chancery Court.
 Heard before Hon. W. L. Parks.
 Affirmed. Opinion by Haralson, J.
 Tyson, c. J, Dowdell and Denson, JJ, concur.
 MARTIN V. MLEOD.
 Appeal from an Order Granting a New
 Trial.-(Decided Nov. 24th, 1906
 42 So Rep. 622).
 Anneal. racord. conflict. recitaIs. neuy