WHITE'S HEIRS v. THE PRESIDENT, &c OF THE FLORENCE BRIDGE Co., 4 Ala. 464

COLLIER, C. J. In Forrest and Wife v. Robinson, [2 Ala. Rep. 215,] it was considered clear that where parties by consent, bring a cause to a hearing on bill and answer, the answer must be taken as true, even as to allegations which are irre-sponsive, or set up matters in avoidance. This decision was induced by the 9th rule of Chancery Practice, published .in 1 Stew. Rep. 617, which has been abrogated by the later rules of practice. But the fourteenth of the later rules, [2 Ala.

Rep. 12,] provides, “that in all cases a replication shall be considered as filed, unless the record shall plainly disclose that the cause is set down for a hearing on bill and answer by consent.” Now the object of this rule, though perhaps not so clearly expressed as might be, was doubtless to secure to a defendant the benefit of his answer as evidence, where the parties consented to a hearing without proof from either side. True, the rule does not in express terms declare such to be the consequence where a cause is thus heard, yet it can subserve no purpose, unless its meaning be what we have supposed.

The agreement of the defendants to admit the heirship of the plaintiffs, and the consent of the parties to submit the case to the Chancellor at the then approaching term of his Court, was in effect a consent to bring the cause to a hearing on bill and answer. The admission that the plaintiffs were heirs of James White, deceased, cannot be so far regarded as proof in the cause, as to lead to a different conclusion; that admission is rather a waiver of the necessity of adducing testimony which the answer required, than evidence.

And though the agreement is not in totidem verbis to submit the bill and answer, but the case itself, yet, as no proof was taken, we must consider the cause as having been heard on bill and answer, by consent. This being so, we are to regard the answer as in all respects true.

It is alledged in the defendant’s answer, that the ancestor of the plaintiffs did, in his lifetime, refuse to subscribe for stock in the Bridge Co., to the amount of his interest in the ferry and its landings, unless the President and Directors of the corporation would agree, that that interest should revert to him in the event the bridge should be destroyed, or become unfit for use; that this condition was never assented to, and no subscription was consequently made.

That provision of the charter under which the plaintiffs insist upon a right to be let in as stockholders, is in these words: “ When there shall be subscribed the sum of sixty thousand dollars, the owners of the ferry across the Tennessee river, at said town of Florence, shall be permitted to subscribe their respective shares or interests in said ferry and ferry landings, at the rate of thirty-five thousand dollars for the whole; and the interests so subscribed shall become a part of the capital and joint stock of said corporation; and when the whole interest in said ferry and landings shall be subscribed or condemned according to the provisions of this act, the said corporation shall be vested with the whole title thereto, both in law and equity, to be held by them and their heirs and successors forever, upon the completion of the bridge according to this act.” This statute doubtless contemplated that the corporation should acquire a right to the ferry and landings, either by the proprietors subscribing stock to the amount which the Legislature had estimated as its value, or by having the interest of the respective shareholders valued by means of legal process, and paying what might be adjudged to them respectively.' But the act is incomplete in failing to prescribe the manner in which the value should be ascertained.

Whether it would be competent now to legislate upon this subject, or whether the plaintiffs, and others standing in the same predicament with them, may maintain an action at law for an, appropriation of their property, are questions which do not-arise in this case. The point to be considered is, does the refusal of the ancestor of the plaintiffs to come in as a stockholder under the charter, prevent them from exercising that privilege ?

It certainly requires no act in writing, in order to render effectual a renunciation of the right, which the act conferred upon the owners of the ferry; a refusal to take stock would' not be a contract in any manner concerning lands, but the legal effect of a subscription would be, not only to transfer the franchise of keeping a ferry, but the landings appurtenant to it, and must be in writing.

A positive refusal to subscribe shares in the ferry for stock in the bridge, would be a wa.iver of the right, the more especially if there had been a change in the condition of the-corporation ; and a change of purpose under such circumstances, can. only be permitted by mutual consent. Upon the proprietors of the ferry declining to come in under the act, the Bridge Company may have increased its subscription for the [purpose of raising the means to purchase the entire interest of the ferry and landings.

If this were the case it might operate inconvenience and injustice, and in fact render necessary a reduction of the stock subscribed in money, if the ferry should be added to the joint stock of the corporation.— The Legislature never could have intended, that the shareholders of the ferry,should be allowed to change their decision on this point at pleasure, and when such a state of things might have retarded, if not prevented, the erection of the bridge.

The refusal of the ancestor of the plaintiffs to subscribe his interest in the ferry and landings to the stock ¡of the'bridge, is a bar to the assertion of such a right by them ; and the decree of the Court of Chancery is consequently affirmed.