— The defendant Maddox in- the third plea admitted the possession of the land, ahcl when this was done the only plea, open to him ivas the *246general issue,- which put the plaintiffs to proof of their title and it was no bar to their right of recovery that Price, who had been jointly sued with Maddox, was not in possession. If the plaintiffs had title, they were entitled to recover,and to recover cost as to those in possession. If Price disclaimed, the plaintiffs were entitled to a judgment as against him, but without cost,- unless they took issue on the disclaimer and proved their issue, in which event they were entitled to a judgment for the land and cost.—Code 1896, § 1583; Calumet Co. v. Cordova Coal Co., 145 Ala. 578, 40 South. 390; Torrey v. Forbes, 94 Ala. 135, 10 South. 320 ; McQueen v. Lampley, 74 Ala. 408; Bynum v. Gold, 106 Ala. 427, 17 South. 667; Stapp v. Wilkinson, 80 Ala. 47. Nor would the fact that Price was not in the actul possession of the land bar a prosecution of the suit to judgment aginst Maddox. The plaintiff’s demurrer to the third plea should have been sustained.
Plea No. 4, of Houston Price, was in effect a disclaimer as to him, and as provided by section 1533 of the code of 1896. Said section permits the defendant to disclaim possession, which practically assimilates the common-law plea of non tenure. The authorities seem to be in conflict as to whether or not it should be considered a plea in abatement. But our court seems to have established a rule as to the effect of a disclaimer, to which we adhere, as it has become stare decises. If the plaintiff takes issue on the disclaimer and succeeds in proving same, he not only recovers the land, but is entitled to a judgment- for cost and damages. If the plaintiff does not take issue on the disclaimer, he can take judgment on the disclaimer for the land, but without cost or damages against the defendant.' So it would .seem that a disclaimer- neither abates the action nor bars the plaintiffs’ right to recover the land. It simply relates to a personal judgment against the defendant. Our court did hold in the case of Morris v. Beebe, 54 Ala. 300, that the defendant could plead non tenure and defeat a recovery. That case was decided before we had a statutory disclaimer, which appears in the code of 1896 and before the promulgation of the rule of this court in reference 'thereto'. The plea of non tenure and *247a disclaimer seems to have been treated as the same thing in the case of Bailey v. Selden, 124 Ala. 403, 26 South. 909. The substance of the plea, being simply a denial of possession,.was in effect a disclaimer, and was not rendered demurrable because of a subsequent declaration of its legal effect or result, which was but a conclusion of law, and does not prevent a question of proof. The court did not err in overruling the demurrer to the fourth plea, which was but a disclaimer. The plaintiff clearly had the right to take issue thereon, which ivas doubtless intended by a general replication, but which should have averred an actual possession by Price. The disclaimer denied actual possession, and the replication simply averred a possession, which was not taking issue. — Morris Case, supra,.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
Weakley, C. J., and Haralson and' Simpson, JJ., concur. Tyson and Dowdell, JJ., concur in the reversal, but entertain the opinion that the fourth plea is good as a plea in abatement.