The writer confesses that he overlooked the language "save and except the following", in pleas of disclaimer, Nos. 5 and 7, and what was stated in the foregoing opinion was on the assumption that the special pleas of disclaimer and not guilty related to the same land. The trial court did not treat plea 7 as waived by plea 8 and the defendant had the full benefit of her defenses under said pleas 7 and 8. *Page 277
To defeat a recovery by plaintiff the defendant had the burden of making certain the twenty acres excepted from the deed of conveyance made by her to plaintiff, by showing that said twenty acres excepted were all the land lying north of Buck Bridge Road in the North Half of Section 19, Township 4, Range 8, in Lawrence County, Alabama. This burden could not be met by disclaiming possession of and admitting title in plaintiff to all lands north of Buck Bridge Road, except the twenty acres specifically described in defendant's plea of not guilty, nor by showing that the lands so specifically described could be located by a surveyor. Such proof did not tend to make certain the exception in the deed, but confirmed the ambiguity.
After due consideration we are not able to concur in the analysis of the appellant and his interpretation of the allegations of the bill filed on the equity side of the docket after the cause was removed to that docket, and affirm our conclusion that the bill in that case alleges that there were 33.8 acres in the strip of land lying north of Buck Bridge Road in the North Half of Section 19, and that the defendant is estopped to prove that the land lying north of said Buck Bridge Road contained only 20 acres.
We are, therefore, of opinion that the application for rehearing is without merit and should be overruled. It is so ordered.
Application for rehearing overruled.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.