On Motion for Rehearing. In the judgment appealed from, Joseph Martin recovered against Bell-Woods Company, but was denied recovery, following a directed verdict, against the other defendants, M. L. Woods, L. R. Bell, and George Earnhardt. In the original disposition in this court, the judgment in favor of Martin was enlarged to embrace Woods, and the establishment and foreclosure of a lien against all the parties, upon the land in controversy, while the judgment in favor of Earnhardt and Bell was reversed and remanded. Earnhardt and Woods have filed motions for rehearing. We conclude that our judgment must be revised.
The record shows conclusively that Martin and the Bell-Woods Company entered into at least an option contract by which the former was to purchase from the latter the tract of land involved. In pursuance of the contract Martin paid $3,239 of the agreed purchase price for the land, after which all parties in effect agreed to set aside and abandon the contract. In such case Martin was entitled as a matter of course to the return of his money.
It was alleged, and proof was offered to show, that Martin was induced to enter into the contract and pay over the money through false and fraudulent representations of the *Page 274 individual defendants, and one Mickleberry, who was not impleaded, although the chief offender in the alleged conspiracy. Bell-Woods Company and its president, M. L. Woods, failed to answer the suit, and in due course judgment by default was rendered against both of them, and the cause continued for the term against the other defendants. Subsequently, after a trial on the merits, the jury were directed, and judgment was rendered, as shown above.
The judgment by default was rendered against Bell-Woods Company and Woods on Martin's original petition, whereas the cause was tried on its merits upon his second amended original petition, which was apparently but an elaboration of the original. The allegations in the latter were quite general, but in the absence of exceptions they appear to be sufficient to warrant the judgment prayed for, and therefore that judgment as against the Bell-Woods corporation, which has not appealed, should be affirmed.
But the judgment concerning Woods is in quite a different situation. Woods never appeared in the suit. He filed no pleading, no motion to set aside the judgment rendered by default against him, took no cognizance of the suit. But at the conclusion of the trial the court upon its own motion in effect set aside that judgment, and proceeded to direct a verdict and render judgment in favor of Woods. There is no affirmative explanation of this ruling of the trial judge, but we assume it was made upon the conclusion of the judge that the evidence, or the change in the pleadings and the substitution of the second amended original petition for the original, freed Woods from liability. In any event, we have concluded that this court is not warranted in rendering judgment against Woods in the face of the record and of the trial court's action.
So do we conclude that the question of the liability of the other individual appellees rests upon the facts, which should be resolved by the trial judge, or by the jury, if the evidence conflicts.
It is clear, too, as held in the original disposition, that appellant was entitled to a decree establishing and foreclosing his equitable lien upon the real estate in controversy against Bell-Woods Company to secure payment of his judgment against that corporation, which judgment is affirmed.
We think it proper to withdraw the holding, expressed in the original opinion, that a plaintiff may combine in one count an action to rescind a contract for the sale of real estate and one for damages for fraud in procuring such contract. The two actions may be joined in one suit, but they should be in separate counts, and therefore the trial court did not err in requiring appellant to amend and segregate the two actions.
The former judgment of this court will be set aside, and it is now ordered that the judgment of the trial court in favor of the individual defendants be set aside and the cause remanded for further proceedings between appellant and said parties; that the judgment in favor of appellant against Bell-Woods Company be affirmed; and that judgment be here rendered establishing and foreclosing the lien asserted by appellant upon the land in controversy in satisfaction of said judgment against Bell-Woods Company. The costs of appeal will be taxed against appellees. All motions for rehearing will be overruled.
Affirmed in part, reversed and remanded in part, and reversed and rendered in part.