[Watson v. Kirby & Sons.] whole amount of said lot of logs were delivered except about ten thousand feet, which plaintiff was unable to deliver on account of the very low stage of the water in Bear Creek, before defendants shut down their mill and moved out of the State of Alabama, ** and refused to receive the balance of them. Wherefore, plaintiff sues to recover the full amount of 177,430 feet as stipulated," etc., giving credit for one hundred dollars. The defendants filed a number of pleas, many of which were included in the plea of the general issue, and there was also the plea of payment. On the plea of payment, the court found the issue in favor of the defendants, and the court also found for the defendants on their counter claim of recoupment and rendered judgment in their favor against the plaintiff. There was a number of special pleas also. We will consider at this time only those as to which rulings were made by the court, to which the plaintiff reserved exceptions, and which in our opinion require a decision. เ Following the judgment of the court, we find that the motion to strike plea number 10 and parts of it from the file was overruled. The fact that a plea may present two separate grounds of defense, does not demand that it be stricken from the files. The plea states that by the terms of the contract it was agreed that the poplar logs referred to therein "should pass regular inspection as to damage, flaws, etc.," and defendants aver that said. words subject to regular inspection as to damage, flaws, etc., contained in said contract meant that only merchantable or good poplar logs could be delivered thereunder." This court does not judicially know what was intended by the parties by the terms "subject to regular inspection as to damage, flaws, etc." The pleader undertakes to inform the court. Whether he is correct in his definition is a matter of proof. This ground for striking the plea was properly overruled. The other grounds do not require further consideration. The plaintiff's demurrer to pleas 7 and 10 were overruled. Applying the rule, that we are to pass upon only the precise ground of demurrer assigned, there was no error in overruling the demurrers. The defendants do not plead an offset to the demand of plaintiff, but they claim by recoupment. A plea may state certain facts prima facie material and aver that they [Watson v. Kirby & Sons.] were falsely and fraudulently made to induce the making of a contract, and were the inducement, and the fact that the contract itself does not include the representations, or refer to them, cannot be urged against the validity or sufficiency of such a plea. The other grounds of demurrer have been disposed of under the motion to strike. Without passing upon the merit of each of the replications to defendant's pleas, to which demurrers were sustained, it is sufficient to say, that the plaintiff had the full benefit of such replications, in the joinder of issue upon the defendant's pleas, and in the 3d and 4th counts added during the progress of the trial. In considering the pleadings, as also the merits of the case, it must be borne in mind, that the plaintiff sues in common form for a quantum valebat, as well as upon the contract, and whatever tended to show the real value of the logs was legitimate evidence. We find no error in the ruling of the court upon the pleadings. Independent of these considerations, the record shows that issue was joined upon the general issue, and on the plea of payment. The judgment of the court adjudges "that upon the defendants' plea of payment the issue is found in favor of the defendants." If the conclusion of the court upon the plea of payment is sustained by the evidence, although there may have been error in the ruling of the court upon the demurrers, motions and replications relating to the special plea of recoupment, such error would not avail to reverse the cause, so far as the judgment of the court sustains the plea of payment.-Shahan v. Ala. Gr. So. R. R. Co., 115 Ala. 181, and authorities cited. The cause was tried by the court without a jury. We have examined the record very thoroughly. It cannot be doubted that there is an abundance of evidence which sustains the finding of the court upon the plea of payment. Following the general rule in such cases, we are required to affirm the judgment.-Boyle v. Boyle, 23 Ala. 544, 546; Kirksey v. Kirksey, 41 Ala. 635; Woodrow v. Hawving, 105 Ala. 240; Scarbrough v. Borders, 115 Ala. 436. The court also rendered judgment in favor of the defendants against the plaintiff upon the counter claim set up in the plea of recoupment. We have examined the evidence introduced in support of this claim, and the rulings of the court upon the exclusion and admission [Steele, Guardian v. Donehoo, Admr.] of such evidence. We are not clearly satisfied that the court is entirely free from error upon the claim of recoupment. Counsel for appellee in their brief, request an affirmance upon the plea of payment. The statute under which the appeal is prosecuted authorizes the court to render such judgment as in its judgment should be rendered. The appellant has no right to a reversal of the judgment upon the plea of payment. The appellees consent to a judgment for plaintiff upon the plea of recoupment. Of this the appellant cannot complain. Judgment will, therefore, be rendered for the defendants. We must not be understood as holding that the bill of exceptions sufficiently shows that it contains all the evidence. Modified and affirmed. Steele, Guardian v. Donehoo, Admr. Proceedings in Probate Court for the Final Settlement of an Administration. 1. Decree of probate court in settlement of an administration; when will not support an appeal.-Where a probate court has acquired jurisdiction of the final settlement of the administration of an estate, and upon its being made to appear that the administrator had filed a bill to remove the administration and settlement into the chancery court, a decree or order by the probate court that further consideration of the cause will be suspended to await the action of the chancery court, is not such a final decree or order as will support an appeal. APPEAL from the Probate Court of Blount. Tried before the Hon. T. H. DAVIDSON. The facts of the case are sufficiently stated in the opinion. EMERY C. HALL and ROBINETT & ALLGOOD, for appellants. INZER & WARD and W. F. DICKINSON, contra. HEAD, J.-The probate court of Blount county, after acquiring jurisdiction of the final settlement of F. G. [Clemmons, et al. v. Cox, et al.] Donehoo's administration of the estate of S. H. C. Johnson, deceased, upon the suggestion of the administrator, in the form of a written plea, that he had filed a bill in the chancery court to remove the administration and settlement into that court, declined to proceed further with the settlement, and made an order "that the further consideration of this cause be suspended to await the action of the chancery court." This appeal is from that order. It is not a matter of doubt that the order appealed from is not a final order, judgment or decree which will support an appeal. When a court wrongfully refuses to exercise its jurisdiction of a given matter, it will be compelled thereto by mandamus, and an appeal does not lie from the refusal.-Ex parte Jones, 1 Ala. 15; Brennan v. Harris, 20 Ala. 185; Shadden v. Sterling's Admr., 23 Ala. 518; Phillips v. Peteet, 35 Ala. 696; Leslie v. Tucker, 57 Ala. 483; Ex parte Dickson, 64 Ala. 188; Ex parte Ala. Bar Association, 92 Ala. 113. We are without jurisdiction of the appeal, and it must be dismissed, without any discussion of the propriety of the probate judge's action in suspending the settlement. Appeal dismissed. Clemmons, et al. v. Cox, et al. Bill in Equity to Establish Title and to Compel Conveyance. 1. Vendor and purchaser; rights of vendee after payment of purchase money and acquiring possession; presumption as to title.-Where, at the time of the purchase of land and the payment of the purchase money and acquiring possession under such purchase, the legal title to said land is in a third party to whom the vendor had, a short time before, conveyed it, but who never paid any consideration therefor, after the lapse of thirty years, during which time the vendee had been in possession, exercising acts of ownership and asserting hostile title thereto, it will be presumed that said third person conveyed the land, to the vendee, and that the legal title had become invested in him, and, as against such title of the vendee, a quit-claim deed executed by the vendor, or a deed conveying the vendor's interest executed by a sheriff, after the lapse of thirty years, is of no avail; and the vendee and those claiming under him are entitled to have the quit-claim deed set aside and annulled and to have a deed executed to him or them conveying the lands of which he or they hold the title. [Clemmons, et al. v. Cox, et al.] APPEAL from the Chancery Court of Geneva. The bill in this case was filed by the appellants against the appellees. The facts of the case are substantially the same as set out in the report of the case on the former appeal (114 Ala. 350); and special reference is here made to the facts as therein stated. The prayer of the bill was that the title to the land described in the bill be vested in complainants; that Chalker be required to execute a deed of conveyance to them; that the quit-claim deed from Chalker to Cox, and the sheriff's deed to Morris, conveying said lands, be set aside and annulled; that a reference be had to ascertain the amount of the rents, incomes and profits derived from said lands of Cox and Morris, and the value of the timber cut, sold and wasted; that an injunction be issued restraining Cox and Morris from further cutting, wasting, removing or selling any timber from said lands, and for general relief. Upon the final submission of the cause, upon the pleadings and proof, the chancellor decreed that the complainants were not entitled to the relief prayed for, and ordered the bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error. CARMICHAEL & THACH, for appellant.-1. Complainants do not ask a literal and exact performance of the contract, but only a substantial performance that will do justice to all parties.-22 Amer. & Eng. Encyc. of Law, 909; Waterman on Specific Performances, § 128. In order to decree substantial performance equity will construe the contract, will ascertain the real intention of the parties, and will carry such intention into effect. Irwin v. Bailey, 72 Ala. 467; Moon v. Crowder, 72 Ala. 79; Thornburgh v. Fish, 11 Montana 53; 2 Washburn on Real Property, 476. 2. Such being the case, the defendants can not, by resisting the bill and in effect thereby asking for a rescission of the contract between Chalker and Clemmons, defeat the bill, unless they offer to return the consideration paid by Clemmons. The answer of the two respondents, Cox and Morris, does not offer, in any way, to restore the status quo of the contracting parties, |