Callen v. Schuessler

Supreme Court of Alabama

Callen v. Schuessler

86 Ala. 527

DecidedDecember 15, 1888

StatusPublished

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Bluebook

Callen v. Schuessler, 86 Ala. 527 (Ala. 1888).

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Opinion

STONE, C. J.

It is contended for Mrs. Callen that, when she purchased the lots from Dudley, there was a balance of seventy-five dollars unpaid purchase-money, an incumbrance on the lots before she acquired the title, but which she paid off as part of the purchase-price she had agreed to pay for the lots. Dudley proves this to have been the case. The claim is, that to this extent the lots never were Dudley’s, and that, consequently, she is entitled to be reimbursed the seventy-five dollars, out of the proceeds of the lots on which the incumbrance rested. If the pleadings were so framed as to raise this question, it may be that her claim would be well founded.

The state of the pleadings will not permit ns to consider this question. In her answer Mrs. Callen “avers that, on the 15th day of January, 1876, the said Mary F. Callen purchased the said above described property from the said James A. Dudley, for the sum of one thousand dollars, which said sum was paid in cash to said James A. Dudley, by the said Mary F. Callen, with funds belonging to her statutory separate estate.” The answer not only fails to aver that Mrs. Callen herself paid off this incumbrance, but avers the contrary, by claiming that she paid the entire sum to Dudley. An averment or admission in pleading can not be the subject of contradictory proof, by the party making the averment or admission.—McGehee v. Lehman, 65 Ala. 316; 3 Brick. Dig. 402, § 571.

But this feature of the case being defensive, in the nature of confession and avoidance, should have been claimed in the answer, to authorize proof to be made of it.

All other questions sought to be raised by the arguments of counsel, were decided adversely to appellant, when this case was formerly before us. We have not changed our [530]*530views, expressed on that appeal, but adhere to them. Schuessler v. Dudley, 80 Ala. 547; County of Dallas v. Timberlake, 54 Ala. 403; Knighton v. Curry, 62 Ala. 404.

Affirmed.

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STONE, C. J.

It is contended for Mrs. Callen that, when she purchased the lots from Dudley, there was a balance of seventy-five dollars unpaid purchase-money, an incumbrance on the lots before she acquired the title, but which she paid off as part of the purchase-price she had agreed to pay for the lots. Dudley proves this to have been the case. The claim is, that to this extent the lots never were Dudley’s, and that, consequently, she is entitled to be reimbursed the seventy-five dollars, out of the proceeds of the lots on which the incumbrance rested. If the pleadings were so framed as to raise this question, it may be that her claim would be well founded.

The state of the pleadings will not permit ns to consider this question. In her answer Mrs. Callen “avers that, on the 15th day of January, 1876, the said Mary F. Callen purchased the said above described property from the said James A. Dudley, for the sum of one thousand dollars, which said sum was paid in cash to said James A. Dudley, by the said Mary F. Callen, with funds belonging to her statutory separate estate.” The answer not only fails to aver that Mrs. Callen herself paid off this incumbrance, but avers the contrary, by claiming that she paid the entire sum to Dudley. An averment or admission in pleading can not be the subject of contradictory proof, by the party making the averment or admission.—McGehee v. Lehman, 65 Ala. 316; 3 Brick. Dig. 402, § 571.

But this feature of the case being defensive, in the nature of confession and avoidance, should have been claimed in the answer, to authorize proof to be made of it.

All other questions sought to be raised by the arguments of counsel, were decided adversely to appellant, when this case was formerly before us. We have not changed our [530]*530views, expressed on that appeal, but adhere to them. Schuessler v. Dudley, 80 Ala. 547; County of Dallas v. Timberlake, 54 Ala. 403; Knighton v. Curry, 62 Ala. 404.

Affirmed.

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86 Ala. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callen-v-schuessler-ala-1888.

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