It is urged on application for a rehearing that our original opinion does not sufficiently take into consideration the fact that there was on file in the cause an answer to the original bill. It is further urged that such answer shows a meritorious defense of which the respondent should not be deprived. Accordingly it is insisted that the motion to set aside the decree pro confesso and decree of sale should have been granted.
We are frank to say that in dealing with the court's ruling on the motion, we considered matters other than the point now urged. No authorities on this point were cited on the original hearing. In fact we are in doubt that the point was pressed in appellant's original brief. Thompson v. Strong, Bagley and Bagley, 199 Ala. 23, 74 So. 34. However, we resolve the doubt in favor of appellant.
Equity Rule 34, Code 1940, Title 7, Appendix, p. 1079, provides in part as follows: "* * * nor shall a decree pro confesso for want of an answer to an amendment or an amended bill operate as a decree pro confesso on the original or any other bill already answered." This part of Equity Rule 34 was contained in Chancery Rule 46, as it appeared in the Code of 1923. See Tennessee Valley Bank v. Clopton, 219 Ala. 181,121 So. 548, and Ex parte Waldrop, 228 Ala. 38, 152 So. 44, now cited by appellant.
It is quite clear that appellant cannot be deprived of his answer to the original bill so far as it alleges meritorious defensive matter to the bill as amended. But an examination of the answer shows that at best it alleges a claim by respondent for permanent improvements and for taxes paid by respondent. These are matters which can be determined after the sale of the property. Bean et al. v. Northcutt et al., 240 Ala. 289,199 So. 7. It may be that the court had these matters in mind when it provided in its decree that "all other questions are reserved." In order, however, that there may be no misunderstanding, the decree is modified to provide that the proceeds of the sale shall not be disbursed until these alleged claims can be determined.
As so modified the decree of the lower court is affirmed and the application for rehearing is overruled.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur. *Page 553