
    Cofer v. Schening.
    
      Statutory Action of Ejectment.
    
    1. Section 2759 of Code construed; non-suit with bill of exceptions. — The right of plaintiff to suffer a non-suit, with bill of exceptions, under section 2759 of the Code, is limited to those rulings and decisions which are the proper matter of a bill of exceptions. It does not extend to rulings on demurrers or pleadings, which of necessity form parts of the record.
    2. The po wer of the judge of the Criminal Court of Jefferson county to issue writs of injunction. — By Act of 1886-87, p. 836, the legislature of Alabama expressly conferred upon the judge of the Criminal Court of Jefferson county the like power and authority to issue writs of injunction which is conferred upon judges of the Circuit Courts.
    3. Title, and right of possession at the time of the commencement of the action, requisite to maintain ejectment. — A plaintiff in ejectment' can not recover, unless, at the commencement of the action, he has a legal title entitling him to the immediate possession. These, subsequently acquired, will not authorize a recovery.
    4. Right of possession intercepted by injunction. — An action of ejectment by plaintiff with the legal title, but where right of possession was intercepted by a temporary injunction in 'force at the commencement of the action, though dissolved before the trial, :can not be maintained.
    Appeal from Cullman Circuit Court.
    Tried before the Hon. H. C. Speakg.
    Statutory ejectment by Mollie M. Cofer against Christopher Schening.
    This action was commenced October 30, 1888. The defendant pleaded the general issue, and, by special plea, that at tbe time of the commencement of this suit the plaintiff was restrained from the possession of the premises sued for by writ of injunction issued in a'cause then pending in the Chancery Court of Cullman county, in which the said Christopher Schening was complainant and Mollie M. Cofer, plaintiff here, was defendant; that said injunction was issued and served on January 13,1888. Upon the trial of the cause, as shown by the bill of exceptions, the plaintiff introduced in evidence three promissory notes, and a mortgage made to secure the same, which conveyed the land here sued for, and which were executed by Christopher Schening and his wife to one Baxter Shemwell. The notes and mortgage were executed on May 12th, 1887, and on the same day were transferred by indorsement by Baxter Shem-well to Mrs. Mollie M. Cofer, plaintiff in this suit. The defendant offered in evidence the transcript from the Chancery Court at Cullman county, Alabama, showing that on January 12th, 1888, the defendant, Christopher Schening, and others, filed a bill in the Chancery Court against Mary M. Cofer, the plaintiff in this suit, and Baxter Shemwell. The purpose of the bill was to cancel the notes and mortgage above described on the ground of fraud in their procurement, and the plaintiffs prayed for an injunction to enjoin the sale of the property involved in this suit. The certificate of said transcript, which was duly signed by the register, was in the following language : “I, Chas. J. Brown, register in chancery in and for said county and State, hereby certify that the foregoing pages, from one to thirty-seven, inclusive, contain a full, true, and correct transcript of said papers in the cause of Christ. Schening et al. v. Mollie M. Cofer et al. in said Chancery Court, and of the proceedings of said court upon the same. Witness my hand this 22d day of July, 1891.” The plaintiff objected to the introduction of said transcript, because. the proceedings shown therein were illegal, irrelevant, and immaterial, and because the certificate did not show that- it was a full, complete, and correct transcript in said cause. The court overruled this objection, and plaintiff duly excepted. The transcript so introduced in evidence showed that the order of the register of the Chancery Court of Cullman county for the issuance of a writ of injunction prayed for in the bill was made by “Samuel E. Green, judge of the Criminal Court of Jefferson county, Alabama.” The plaintiff objected to the order, “because the same was not made by any officer authorized under the laws of Alabama to grant an injunction.” The court overruled this objection, and the plaintiff excepted. The testimony for tbe defendant further tended to show that on January 13tb, 1888, a writ of injunction was issued by tbe register in chancery of the county of Cullman, after tbe execution of a bond, in accordance with tbe order of Samuel E. Green, judge, as aforesaid, and that tbe same was served on tbe date of its issuance. It was further shown that on November 17th, 1888, tbe chancellor granted tbe motion of the defendant in tbe above-stated chancery suit, and dissolved tbe temporary injunction upon tbe denials of tbe answers; and that on May 3d, 1890, tbe bill of complaint was dismissed out of tbe Chancery Court. Tbe cause was tried, as is shown by the bill of exceptions, at an adjourned term of tbe Circuit Court of Cullman county, that was held from July 20th to July 25th, 1891. Upon tbe intruduction of all tbe evidence, tbe court, upon its own motion, stated to tbe attorneys of tbe defendant “that, in order to sustain tbe action of ejectment, plaintiffs, at tbe commencement of tbe suit, must not only have tbe right to tbe legal title, but must have tbe right to tbe possession; and, it appearing from tbe evidence that at the commencement of this suit, plaintiff was enjoined from interfering with tbe possession, if tbe defendant would ask tbe general charge, be would give it.” Thereupon tbe defendant requested the general charge in bis behalf. To this action of tbe court plaintiff duly excepted, and then took a non-suit, with tbe privilege of presenting a bill of exceptions. There were many rulings of the court upon tbe pleadings, but tbe opinion of this court renders it unnecessary to notice them in detail.
    W. T. L. Cofer, for appellant.
    Geo. H. Parker, for appellee.
    (No briefs came into the bands of the reporter.)
   STONE, C. J.

Tbe statute (Code, § 2759), authorizing a plaintiff to suffer a non-suit, and by bill of exceptions reserve adverse rulings of tbe trial court, for revision in this court, has been uniformly construed as restricting such power to those rulings and decisions, which are tbe proper matter of a bill of exceptions, and which without such bill, can not properly appear of record. It does not extend to rulings and decisions on demurrers to pleadings, which of necessity form part of tbe record.—3 Brick. Dig. 678, 357. Tbe assignments of error which refer to tbe rulings of tbe court on demurrers to tbe pleadings, are of consequence, not now before us for revision.

It may be tbat tbe certificate of tbe register authenticating tbe transcript of tbe record from tbe Chancery Court, is not very formal, or technical. Fairly and reasonably construed, it affirms tbat tbe transcript contains a full, true and correct copy of all tbe proceedings bad in tbe court of chancery, and all tbe orders and decrees rendered in tbe particular cause. This satisfied all tbe requirements of tbe law, and tbe objection to tbe introduction in evidence of tbe transcript was properly overruled.—Cargile v. Ragan, 65 Ala. 287; Clements v. Pearce, 63 Ala. 286.

Tbe act establishing tbe Criminal Court of Jefferson county, in express words, confers on tbe judge of tbe court, tbe like power and authority to issue writs of injunction, which is conferred upon tbe judges of tbe Circuit Courts. (Pam. Acts, 1886-7, p. 836, §5.) Similar statutes conferring such authority and power on inferior courts, limited in general jurisdiction to particular counties, have been construed as conferring the power and authority to issue such writs, or grant orders for tbe issue thereof, returnable into any court of tbe State, having jurisdiction.—E. & W. R. R. Co. v. E. T., V. & G. R. R. Co., 75 Ala. 276. If in tbe present case, an inquiry into tbe power and authority of tbe judge of tbe Criminal Court to grant tbe order for tbe issue of tbe injunction could be pertinent, there can be no doubt of its existence.

A plaintiff in ejectment, or in tbe corresponding statutory real action, can not recover, unless at tbe commencement of tbe action be has a legal title, entitling him to tbe immediate possession. Title and right of possession subsequently acquired will not authorize a recovery.—2 Brick. Big. 324, § 27. At tbe commencement of tbe suit tbe plaintiff bad the legal title, but bad not tbe right of possession. Tbat right bad been intercepted by tbe temporary injunction tbe defendant bad obtained from tbe court of chancery. "While tbe injunction remained of force, tbe right of entry and of possession could not be asserted elsewhere than in the court of chancery, without tbe order or decree of that court. An entry on the premises by tbe plaintiff, and possession of them, would have been a violation of tbe injunction, a contempt of tbe process and jurisdiction of tbe court, to tbe commission of which other courts should not aid or contribute. Tbe subsequent dissolution of tbe injunction and dismissal of tbe bill, was not retroactive. Tbe rule of tbe common law is inflexible, tbat tbe plaintiff in ejectment must recover upon tbe state of facts existing at tbe commencement of tbe suit. . Tbe subsequent occurrence of necessary facts, will not support tbe suit. If sucb facts bad existed at tbe commencement of tbe suit, tbe defendant might bave yielded to them, avoiding litigation.—Goodman v. Winter, 64 Ala. 410. Tbe Circuit Court did not err in tbe charge given, and tbe judgment must be affirmed.

Affirmed.  