Cargile v. Ragan

BRIOKELL, C. J. — 1. The certificate of the register affirms that the transcript to which it -is appended contains “ a full, true, and complete transcript of the record and proceedings in the cause,” &c. The record the register is required to make and preserve in his office, of a cause disposed of by a decree on the merits, does not comprehend all that must be embraced in a transcript which is certified to be used as evidence in other courts. Commissions to take depositions, and depositions, he is not required to introduce into the final record. These it is his duty to make, file, and preserve. When certifying the record, to be used as evidence in another court, he must make a transcript of all the papers on file in his office relating to the case, which have not been entered of record, as well as of the record; and it is this transcript which, when.duly certified, has the force and effect of evidence in other courts of this State. — Code of 1876, §§ 637-8. The certificate of the register would have been more formal if it had employed the words of the statute, and affirmed that the transcript contains, not only the record, but the papers on file. These papers, however, were necessarily proceedings in the cause; and it is but a fair interpretation of the certificate, to construe these words as embracing and intended to embrace the papers on file. 2. The sale by the register was subject to confirmation by the court, and until confirmation it was incomplete, conferring only inchoate rights. Its confirmation rested in the sound discretion of the court; and if irregularities intervened in making the sale — if it was made at an improper time or place — these irregularities were the subject of exception to its confirmation. If not made the subject of an exception, they are cured by confirmation ; and afterwards it must be intended,- that the court, in confirming, ascertained and adjudged that no injury had resulted from them. Certainly, a party to the suit, having full opportunity to except to the report of sale, because of them, and who was silent, can not be heard collaterally to question the validity of the sale, because of them. It is not of importance, therefore, to inquire whether the sale of the register ought to have been made in Clay county, where the lands were situate, instead of Talladega county; where the court was held. The appellant, when he had the opportunity of contesting, and when, if dissatisfied, he ought to have complained, acquiesced in the sale, and can not now question its validity. 3. If the appellant was in the adverse possession of the lands, at the time of the sale and conveyance made by Cunningham to the appellees, it was matter of defense, the burden of proving which rested upon him. The court could not [293] assume it as proved, and exclude the conveyance as an instrument of evidence. 4. All previous or contemporaneous verbal stipulations are presumed to be merged in a written contract. Between the parties, or privies, parol evidence of them is inadmissible, to alter, vary, or contradict the writing. Without an invasion of this rule, the court could not have received the evidence offered, that the written contract of renting, into which the appellant had entered, on its ’ face complete, did not contain the entire agreement, or of the terms supposed to have been omitted. 5. If there was any irregularity in the appearance of one of the solicitors of Cunningham in the suit in chancery, as solicitor for some of the respondents, it can not affect the validity of the decree. Nor is it easy to perceive of what interest it was to the appellant, who was a party, having the full opportunity of making defense, and protecting himself from injury because of the irregularity. It is proper to say, however, that there is nothing found in this record indicating that in it there was the least impropriety. The answers are no more than admissions of the allegations of the bill; and there could be no impropriety in a solicitor for the complainant drawing and filing them, for the convenience of the respondents, when they freely and voluntarily requested it, as must be presumed. 6. Nor was it permissible in this suit, or in any collateral proceeding, to enter on the inquiry, whether the complainant, Cunningham, had any, .or what interest, in the note upon which the decree of the Chancery Court was rendered. The want of interest was matter of defense, and the decree is conclusive of all matters of defense which could have been urged against its rendition. It is conclusive, as against the appellant, that Cunningham was the proper party complainant, and that the money adjudged was due to him. — Mervine v. Parker, 18 Ala. 241. 7. When there is no conflict in the evidence, and it clearly establishes the right of the plaintiff to recover, if the court is requested, it is a duty to charge the jury that their verdict must be for the plaintiff. — 1 Brick. Dig. 535, § 3. That was the condition of the case, when the evidence was closed; and without error the court could not have refused the general charge requested and given. Affirmed.