The appellee sued appellant for a breach of covenant and warranty in a deed by the latter executed to the former, purporting to convey to appellee certain lands therein described. There was much, pleading in the case, but it was all eliminated by the trial court (and in favor of appellant) except the fourth count as amended and the rulings thereon. (Thq reporter wall set out the fourth count as amended.) It is alleged that the deed was executed, and the covenants were entered into, in the state of Florida, on the 10th day of May, 1904. A copy of a certain deed of that date is made an exhibit to and a part of each count of the complaint. The covenant as alleged is that appellant, in said “conveyance, warranted the title to said lands, and covenanted to defend the same against the lawful claims of all persons whomsoever.” It is also alleged that plaintiff was placed in possession of the lands conveyed under said deed; that on the 8th day of June, 1899, the lands in question were sold under a judgment or decree rendered by the circuit court of Jackson county, Fla., in equity, in a suit by one A. D. McKinnon against Seth Johnson and others, including Seth Johnson as administrator of the estate of P. P. Johnson, deceased; that this court had jurisdiction; that the lands were sold under this judg*553ment or decree by the sheriff of Jackson county, and that D. L. McKinnon became the purchaser thereof and received a conveyance thereto; that the lien created by the execution and the sale of the lands ivas paramount and prior to the title conveyed by Seth Johnson to the plaintiff; that thereafter D. L. McKinnon brought an action in the circuit court of Jackson county against the plaintiff and David Linton to recover the lands so sold to the plaintiff, and that the said D. L. McKinnon, on the 9th day of June, 1899, obtained in said court a judgment in said cause against the plaintiff and said David Linton for the possession of said lands, which judgment is alleged to remain in full force and effect; and that plaintiff and David Linton were compelled to yield possession to said McKinnon. The count then alleges that although the deed, made exhibit to the count, was made to David Linton, plaintiff was in truth and in fact the purchaser of said lands from Seth Johnson, and was the party really interested; that on October 20, 1903, David Linton had executed and delivered to Plaintiff a quitclaim deed to the premises; and that on January 7, 1905, David Linton assigned to plaintiff any and all right, title, or interest and claim, which he had, by virtue of the covenants in said deed contained, or of the breaches thereof. The count then alleged that the title to said lands was in P. P. Johnson, defendant’s intestate, and that the title passed under the execution sale above set forth.
There were two trials in the court below — the first judgment being set aside by the trial court. A stenographic report was made of the first trial, and this report, by agreement of parties, was introduced in evidence on the second trial. This report showed a great number of objections and exceptions by both parties. *554to the admission and exclusion of evidence and to other rulings of the trial court, and many assignments of error on this appeal are based on rulings shown only by this stenographic report of the first trial. We find this statement in the bill of exceptions as to these rulings thus shown: “This cause had been tried at a. former term of the court, and the verdict and, judg-' ment had been set aside by the court, and a new trial ordered. At that trial a stenographic report of the trial had been taken. When the cause came on for trial at the June call, to wit, July 6, 1907, the parties announced that they had agreed to submit the 'cause to the court on the evidence which had been taken at the first trial, and the stenographic report was offered in evidence, whereupon the court gave the general affirmative charge for plaintiff, as requested in writing. The exceptions to rulings on questions of evidence noted in the foregoing bill of exceptions had been reserved on the first trial, and are now reproduced. Nothing was said to the court about the exceptions reserved on questions of evidence at the first trial, nor did the court at this trial repeat these rulings, nor were they in any way. brought to the court’s attention.”
In this court we cannot review these rulings on the former trial, and must treat the evidence, as shown by the report, as being introduced on this trial by agreement, but treat the objections thereto, made on the former trial, as being waived. The court gave the affirmative charge for plaintiff, and the trial, of course, resulted in a verdict and judgment for plaintiff. If this charge was proper, of course, all other questions raised are immaterial, and many of the assignments of error cannot be reviewed for the reason above set forth. We are of the opinion that the trial court erred in the giving of the affirmative charge for plaintiff. We do *555not think that all the material averments of this count were sufficiently proven to warrant the giving of this charge. Under all the evidence in this case, it was a question for the jury to determine whether or not the plaintiff acquired the title to the lands conveyed by deed containing the covenants and warranties sued- on in this case. It was likewise a question for the jury to determine whether or not there was a prior and paramount outstanding title to the lands conveyed, and whether or not the plaintiff was compelled to yield to it, and whether or not he did yield to it as alleged in this count. It was not indisputable or conclusively shown that the judgments and sales set up in this count were valid, as alleged, or that the court had jurisdiction to render the one, or to authorize the other, as alleged. We do not mean to decide what we would hold, as to this, if proper objections had been made to some of the evidence offered, nor do we pass upon the question as to whether all parts of it were competent or admissible for the purposes for which offered; but it is in the record, and, as it shows, was introduced on the trial by agreement. We only hold that, under all the evidence, these material allegations were not proven without conflict, so as to authorize the affirmative charge.
We call attention to the following facts, without passing on the effect thereof: The deed is alleged to have been executed in Florida, and the covenants to have been entered into in that state; and there is evidence tending to show (if it does not conelusively show) that the transactions alleged all occurred in Alabama. It is alleged that the purchaser at the execution sale brought suit against the plaintiff and David Linton for the possession of the land, and obtained a judgment therefor, and that in obedience to this *556judgment plaintiff was compelled to yield the possession of said lands to the plaintiff in that suit. .We do not think this judgment or ouster is sufficiently shown as alleged. The evidence strongly tends to show that this action and ouster were collusive, and therefore void as against this defendant. It certainly tends to show that plaintiff could have, and ought to have, successfully defended this suit, but that, instead, he invited and courted it, and would not allow the defendant to defend it. As to the counts which set up breaches. of covenants against encumbrances, seisin, etc., it is unnecessary for us to decide, because they were eliminated from the complaint before judgment.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
Dowdell, C. J., and Simpson and McClellan, JJ,. ' concur.