Hall v. Holcombe

26 Ala. 720

Opinion

CHILTON, C. J.

—The plea in abatement in this case is clearly bad, and should have been so held upon demurrer.— Athough the former action was brought to recover the same land, it shows that it was brought by other persons than those who are the present plaintiffs. True, the present plaintiffs unite with them ; but this makes no difference : the legal presumption is, that it was properly brought, and hence that it is not brought upon the samo title ; as the rule is, that all the plaintiffs must recover, or none of them can.—1 Chitty’s Pl. 66; Adams on Ej. 299, and notes; Patton v. Crow, at the present term. Assuming, therefore, that the former action is well brought, it is upon a joint right of all the plaintiffs to that suit, — a title different from that to be tried in this suit.

Aside, however, from this objection, the case falls within the decision of this court in Hall and Wife v. Wallace, 25 Ala. Rep. 438.

Judgment reversed, and cause remanded.