Tumlin v. Tumlin

ANDERSON, C. J.

The first and principal point argued in brief of appellants’ counsel was considered upon the former appeal in this ease and was there decided against their contention. 195 Ala. 457 , 70 South. 254 . The question was then carefully considered both upon the original submission and rehearing, and we are not disposed to recede from the previous holding. It is true, the answer was amended after reversal of the cause upon the former appeal so as to incorporate therein a plea setting up the *457 statute of frauds; but this question, though not specially pleaded, was argued at length and was considered and treated by the court. Indeed, counsel' for appellants concede in their reply brief that the question was decided upon former appeal, but seek to have us overturn the former opinion, and which we are not willing to do.

We hold, however, that there is merit in assignments of error 4 and 5, and that the trial court erred in not directing the register to confine the rents to the period commencing one year prior to filing the bill of complaint, as the appellees’ possession was under bona fide color of title. Section 3850 of the Code of 1907. True, this section appears in a chapter of the Code on ejectment, but it was applied more than 40 years ago to actions like the present one. Sanders v. Robinson, 57 Ala. 465 . In fact, counsel for appellees do not seriously contend for rent beyond the year previous to filing the bill, and suggest that we ascertain the proper amount and render a decree. The register, however, has not held the reference, and we will therefore remand the case for him to ascertain the amount commencing at the proper period; i. e., one year prior to filing the bill of complaint.

The decree is affirmed in part, and reversed and remanded in part, and the cost of this appeal will be taxed against the present appellees.

Affirmed in part, and reversed and remanded in part.

SAYRE, GARDNER, and BROWN, JJ., concur.