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Appeal from Circuit Court, Marion Coun- jhad made the same proposition' to defendant ty; J. J. Curtis, Judge.

as he had to Blakeney—that he could live Action in ejectment by K, V. Fite, as ex.

on this place without paying rent. ecutor of J. F. Earnest, deceased, against

There was evidence of statements, made W. L. Earnest, to recover a house and lot. by defendant after testator's death, tending Judgment for plaintiff, and defendant ap- to show that he considered this property as peals. Affirmed.

a part of his father's (testator's) estate. Defendant is a son-one of three chil

Other questions are sufficiently stated in dren-of J. F. Earnest, the testator, and his

the opinion. contention is that he acquired title to the

The jury found for plaintiff, and there land in suit by adverse possession thereof

was judgment accordingly, from which de

fendant appeals. from September, 1893, down to the time of the suit; and also by prescriptive holding

W. F. Finch, of Jasper, for appellant. of 20 years or more. It appears without dis

A. H. Carmichael, of Tuscumbia, and K. pute that plaintiff's testator acquired the V. Fite, of Hamilton, for appellee. land on October 29, 1895, by a deed executed to him by the owner on that date.

SOMERVILLE, J. [1] Section 2830 of the Defendant and his wife testified that they Code of 1907, which became effective as a moyed on the place in September, 1895, and part of the Code on May 1, 1908, is radicalthe wife testified that, before they moved only different from section 1541 of the Code of it, the testator told her "that he had given 1896, for which it was substituted. Under us a home; that he had bought us a home section 1541 of the Code of 1896, it was uni. to give us.” There was no other evidence formly held, in accordance with its express tending to show a gift, except the testimony provisions, that its requirements were not of some half dozen or more witnesses that applicable to an adverse claimant who enter. they had at various times within the last ed upon land under a bona fide claim of pur20 years heard the testator (who died in chase or inheritance, though without color 1920) say that he had given the place to de- of title. But section 2830 of the Code of fendant, or refer to it as defendant's home. 1907 expressly denies the acquisition of title

Defendant's evidence shows that he has to land by adverse possession unless the occupied the place as his home ever since claimant shows (1) that a deed or other color 1895, with the exception of three years (1904 of title purporting to convey title to him has 1907); and that for those years he received been duly recorded in the office of the prothe rents which were collected from tenants bate judge for ten years before the com. by the testator, who had rented the place to mencement of the action; or (2) that he and several successive tenants. It shows, also, those through whom he claims shall have an. that defendant, throughout the period of his nually listed the land for taxation in the occupancy, made valuable improvements by proper county for ten years prior to the com. building a barn, additions to the dwelling, mencement of the action, if the land is suband new fences, all with the knowledge of ject to taxation; or (3) unless he derives ti. plaintiff's testator, who lived in the commu- tle by descent cast, or devise from a predenity.

cessor in the title who was in possession of Defendant never assessed the land for tax- the land. es, nor was it ever assessed against him un If the claimant does not bring his possestil 1921, after testator's death, though he sion within one of these three specifications, regularly assessed other property, real and his claim of title by adverse possession must personal, owned by himself. On the con- fail. Cox v. Broderick, 208 Ala. 690, 95 trary, with his knowledge, it was assessed South. 186; McCraw v. Lindsey, 209 Ala. by the testator, who paid the taxes annual- 214, 95 South. 898; Kilpatrick v. Trotter, ly down to his death in 1920. Defendant tes- 185 Ala. 546, 64 South. 589; Wright v. L. & tified that he paid the taxes "several times,” | N. R. R. Co., 203 Ala. 118, 121, 82 South, 132; taking receipts not in his own name, how- Childs v. Floyd, 188 Ala. 556, 66 South, 473; ever.

s. C., 194 Ala. 651, 70 South. 121. See, also, On plaintiff's objection, the trial judge ex- Kretzer v. Jackson, 183 Ala. 642, 644, 62 cluded the question to defendant, “Did your South. 811. father, at any time since you have been lir. In the instant case it must be noted that ing there, ever ask you to pay him any rent defendant's claim does not come within the on that property?” and excluded also the requirements of section 2830, Code 1907; and questions to defendant, “At whose request hence he could acquire title by adverse posdid your father rent the property to Joe session only by the perfection of the ten-jear Guin?” and, “In whose care did you leave it period prior to May 1, 1908. while you were at Glen Allen?"

Some confusion on this subject is apparOver defendant's objection that it was ir-ent in our decisions. In Owen v. Moxon, 167 relevant and hearsay evidence, plaintiff was Ala. 615, 622, 52 South. 527, 529, the case allowed to show that the testator told his was under section 1541, Code 1896, but the son-in-law, one Blakeney, that he (testator) | opinion says:

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(100 So.) "The statute (section 2830, Code 1907) re The 'application of this principle to the eviquiring registration applies only to one in pos- dence justifies the refusal of the general session as a trespasser or mere squatter, and charge requested by defendant, to say notlanot to one who claims under a bona fide claim ing of other features of the evidence. of purchase. Roe v. Doe, 159 Ala. 614, 48 South. 1033; Holt v. Adams, 121 Ala. 664, 25

[2] The admissions by defendant tending South. 716: Sledge v. Singley, 139 Ala. 346, ing to show that he regarded the property in 37 South. 98."

question as a part of his father's estate,

though made after the lapse of 10 or 20 All of the cases cited were under the old years from the inception of his possession, statute, and it is clear that the writer of were competent and admissible as tending to the opinion inadvertently referred to the new show that his possession had not in fact been statute instead of the old one.

hostile and adverse to his father's title. In Dixon v. Hayes, 171 Ala. 498, 502, 55 Jones v. Williams, 108 Ala. 282, 19 South. South. 164, 165, the opinion reads:

317, distinguishing Lee v. Thompson, 99 Ala, "By the terms of the statute (Acts 1892–93, 95, 11 South. 672. p. 478; Code 1896, § 1541 et seq. See Code [3, 4] The undisputed evidence showed that 1907, now section 2830), requiring the record the testator, defendant's father, gave to deof claims of adverse possession under condi- fendant at least the use of the property as tions therein defined, it had no application to

a home, and hence it would have added notha rightful possession, or to a possession under color of title, or to a possession under Bona ing to defendant's case to have shown that fide claim of inheritance or purchase.”

his father never demanded of him any rent.

But, as the question did not show, and counThat case was entirely under the law ex. sel did not state, that a negative answer was Isting prior to the Code of 1907, and the expected, the question was prima facie obwriter of the opinion very clearly did not jectionable as calling for a statement by a mean to apply to section 2830, Code 1907, the deceased person whose estate was interested observation made with respect to the terms in the result of the suit. Code, & 4007. and scope of the original act. The headnote,

[6] For the same reason, defendant's teshowever, erroneously so applies it. And, fol- timony as to transactions between defendant lowing the inadvertent error of reference in and his father relating to the renting of the Owen v. Moxon, supra, and the false head- property, and the collection and disposition note in Dixon v. Hayes, supra, three of our of the rents during the three years of de later cases have repeated the error.

M. & fendant's absence, were properly excluded. G. R. R. Co. v, Rutherford, 184 Ala. 204, 63 “A conversation between two persons is a South. 1003; Stewart Bros. v. Ransom, 200 transaction by each with the other, within Ala. 304, 76 South. 70; Short v. De Bardele- the meaning of the statute (Code. g 4007), ben Coal Co., 208 Ala. 356, 94 South, 285. In whether the actual talking be done by both 80 far as these cases involved the construc- or only by one." Buye v. Ala. Marble Quartion of section 2830, Code 1907, they must be ries, 199 Ala. 589, 75 South. 9. However, overruled.

those matters are clearly shown by other What constitutes adverse possession of parts of defendant's testimony, in connection land by one who enters under a parol gift with the testimony of Joe Guin. from the owner has been repeatedly discuss

[6] Under the same statutory rule of exed and stated by this court. Collins v. clusion, defendant could not be allowed to Johnson, 57 Ala. 304; Boykin v. Smith, 65 state that his father gave him the property, Ala. 294; Vandiver v. Stickney, 75 Ala. 225; notwithstanding the fact that one of plainPotts v. Coleman, 67 Ala. 221, 227; Lee v. tiff's witnesses had testified that defendant Thompson, 99 Ala. 95, 11 South. 672; Gil- suggested to him, after his father's death, lespie v. Gillespie, 149 Ala. 184, 43 South. 12. that witness could swear that the father had

In Gillespie v. Gillespie, supra, it was said: given witness' wife a place, and that he had "Where a donor alone assesses and pays the also given defendant the place in question. taxes on the alleged subject of the gift for a

The assignments of error present several period of nearly twenty years succeeding the other rulings on evidence which are either time of the alleged gift [this] is, as matter of clearly without merit, or are not argued in evidence and unexplained, inconsistent with a brief. possession by a donee that may ripen into a

[7] Estoppels in pais cannot affect the tifee estate; and such acquiescence in the annual proclamation by a donor of his title is tle to land in a court of law. McPherson v. a fact of strong probative force that the do- Walters, 16 Ala. 714; Donehoo v. Johnson, nee's possession was in subordination to the 120 Ala. 438, 24 South. 888; Boone v. Gulf, title and in recognition of it.”

etc., R. Co., 201 Ala. 560, 78 South. 956.

Hence the instructions requested by defendTo the same effect are Driver v. King, ant on the theory that plaintiff is estopped 145 Ala. 585, 596, 40 South, 315, and Annis- from asserting title because his testator ton, etc., Co. v. Edmondson, 141 Ala. 366, 37 knew that defendant was making valuable

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improvements on the place, and made no oben

South. 424.

jection thereto, and asserted no claim of his Action by Gus May against Sol Middleton. own, were properly refused.

Judgment for defendant, and plaintiff apIn courts of equity a different rule pre- peals. Transferred from Court of Appeals vails. 5 Michie, Dig. 704, § 73.

under section 6, p. 450, Acts 1911. Affirmed. [8] As to the claim of title by prescription,

The action is in detinue to recover certain based on possession under claim of right for

personal property, The defendant suggested 20 years or more, while the requirements that plaintiff's claim was based on a mortof the statute (section 2830, Code 1907) are gage, and asked that the amount of the debt not applicable to such a claim (Jones v. secured by it be ascertained. The main mortRutledge, 202 Ala. 213, 80 South. 35), yet gage, which included the debts secured by the evidence before the court did not per- several smaller mortgages, was for $1,600, mit the giving of the general affirmative was signed by the defendant and four of his charge for defendant on that issue. On the

children, and included their several individcontrary, it would scarcely support the pre- ual debts, as alleged, to plaintiff. As to the sumption of a written grant.

amounts of original indebtedness, and also We find no error in the record, and the as to the amounts paid on it in money, cotton, judgment will be affirmed.

and other property, the evidence was in disAffirmed.

pute. The evidence for defendant tended All the Justices concur.

to show that the actual indebtedness covered by the mortgage had been discharged by payments made.

The trial judgė gave the following charg

es requested by the defendant: MAY V. MIDDLETON. (8 Div. 642.)

“(1) The burden is on the plaintiff to show to (Supreme Court of Alabama. April 17, 1924. the jury the amount of the indebtedness due Rehearing Denied June 19, 1924.)

on the mortgages.

“(2) The plaintiff cannot recover under the 1. Detinue ew18-Burden of proof in action of $1,600 mortgage if the two mules and cultidetinue, stated.

vator were of equal value to or greater than

the debt owing by the defendant and secured Under Code 1907, § 3789, where defendant

by the mortgage. in detinue suggests that plaintiff's claim is based on mortgage debt, burden is upon de- claims the property under a mortgage, the bur.

“(3) Under the suggestion that the plaintiff fendant to show existence of mortgage, then den is upon the plaintiff to show the correct upon plaintiff to show amount of indebtedness amount due him by the defendant." under mortgage, and then upon defendant to show payments or discharge or other defense authorized by section 3791.

The giving of these several charges is

separately assigned for error. 2. Trial 234(7)—Instructions as to burden

At the plaintiff's request the following of proof held not misleading.

charges were given: Instructions as to burden of proof and extent of defendant's obligation, in action of "(1) The mortgage of March 220, securing detinue wherein defendant suggested plaintiff's $1,600, is prima facie evidence that 'defendant claim was based on mortgage, when considered was indebted to plaintiff in the sum of $1,250, together, held not misleading.

and the burden is on the defendant to show

the true amount, if that amount was not true. 3. Appeal and error Omw494–Ruling on motion “(2) It is immaterial whether the $1,230

for new trial not reviewable unless judgment recited so to be due in the mortgage of March thereon shown; showing held sufficient. 22, 1922, was in part the indebtedness of his

Ruling on motion for new trial will not children; by executing the mortgage, the inbe reviewed on appeal therefrom unless' rec- debtedness of his children would become his ord proper shows judgment thereon, but a re- indebtedness, and he would not be entitled to cital in the bill of exceptions of the motion, reduce the amount of the mortgage indebtedthe ruling of the court, and exception thereto ness by the fact that part of it was his chil. is sufficient to present same for review on ap

dren's. peal from judgment on verdict.

“(3) The burden is on defendant to prove the

amount of payments he has paid." 4. Appeal and error em 1005(3)-Court's rul

ing sustaining verdict on motion for new trial, The jury found for the defendant, and conclusive.

there was judgment accordingly. The plainCourt's ruling sustaining verdict on con- tiff's motion for new trial being overruled ficting evidence as to balance due on mortgage (the motion and ruling being shown by the constituting basis of plaintiff's claim held bind- bill of exceptions only), plaintiff appeals from ing on appeal, when verdict was not palpably the judgment, and assigns for error also the wrong.

ruling on his motion. Appeal from Circuit Court, Morgan Coun- Callahan & Harris, of Decatur, for appelty; Osceola Kyle, Judge.


For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.)
Sample & Kilpatrick, of Hartsells, for ap-

DAVIDSON v. STATE, (8 Div. 635.) SOMERVILLE, J. [1] When the defend- (Supreme Court of Alabama. April 17, 1924. ant in detinue suggests that the plaintiff's

Rehearing Denied June 19, 1924.) claim is based on a mortgage, and requires 1. Jury 116_That one juror not resident of the ascertainment of the amount of the mort county held no ground for challenging array gage debt, as provided by section 3789 of the nor for quashing venire. Code, the burden is, of course, on the defend Under Jury Law, $ 29, that one of jurors ant to show the existence of the mortgage did not reside in county was no ground for chalclaim. Thereupon, the action assumes the lenging array nor for motion to quash entire

venire. character, quoad hoc of an action on a note or other indebtedness, and the burden de- 2. Jury Cm116–Refusing to quash venire bevolves upon the plaintiff to show the amount cause of error in names of jurors held not of the indebtedness under his mortgage. This error. he may do by showing a note, or a recital in Under Jury Law, $ 29, refusing to quash the mortgage, or an account stated, or by in- venire because of error in names of two jurors dependent evidence. When a debt is thus held not error. shown prima facie, the burden devolves on 3. Grand Jury Pull - Excusing grand juror the defendant to show that it has been paid he'd not to affect indictment, or discharged in whole or in part, or to make Excusing grand juror for sufficient cause any other defense authorized by the statute, did not affect validity of indictment, where Code, $ 3791.

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from aught appearing there were sufficient num[2] Standing alone, the several instructions ber left to constitute legal grand jury. given to the jury at the instance of defend-4. Homicide em 203(3)-Dying declaration held ant might well have been misleading as to properly admitted. the burden of proof resting on plaintiff and

There was no error in admitting deceased's defendant respectively, and also as to the statement that accused shot him, made shortly extent of defendant's obligation as to the before his death, after saying he was going to whole indebtedness secured. But their am- | die. biguity and misleading tendency are, we 5. Criminal law m723(1)-Statements by think, entirely removed by the charges given

solicitor in argument held not prejudicial. for plaintiff, as well as by the general oral

In prosecution for murder, statement by charge. The jury could not have misunder- solicitor in argument that, if jury let accused stood the law applicable to the case, and go, there would be more still, cold forms in reversible error cannot be found in the giving cemeteries, held not so objectionable as to . of the charges complained of.

constitute reversible error. [3] While an appeal from the ruling of the

6. Criminal law Om814(3)-Abstract instructrial court on a motion for new trial will not

tion not based on evidence held properly rebe entertained unless the record proper shows fused. a judgment thereon (Clements v. Hodgens, Abstract instruction not based on evidence 210 Ala. 486, 98 South. 467), a recital in the in case held properly refused. bill of exceptions of the motion, the ruling of the court, and an exception thereto by 7. Criminal law Ow798(1)-Charge for acquit.

tal if single juror has reasonable doubt held the party adversely affected, is sufficient to

properly refused. present the question for review on appeal

Charge to acquit if any juror had reasonable from the judgment on the verdict (Dees v. doubt of deceased's guilt held properly refused, Lindsey Mill Co., 210 Ala. 183, 97 South. though such fact would prevent conviction.

8. Criminal law Om789(15)-Charge for ac[4] We have given thorough consideration to the evidence as to the existence of a bal

quittal unless evidence excluded every rea

sonable "supposition" properly refused. ance due on the mortgage indebtedness. It

Charge to acquit unless evidence excludes is in conflict, and it may be that the weight

every reasonable "supposition" but defendant's of the evidence favors the claims of plaintiff ; guilt held properly refused. but we are unable to affirm that the weight of the evidence is so overwhelming in favor 9. Criminal law Cm 829(1)-Charge substanof plaintiff as to show that the verdict for

tially covered by charges given held properly defendant is palpably wrong.


We must therefore decline to reverse the ruling of the

Charges substantially covered by several trial court sustaining the verdict of the jury. given charges as well as by oral charge of Finding no error in the record, the judg

court were properly refused. ment will be affirmed.

10. Homicide 300(12)-Charge for acquittal

if jury has reasonable doubt whether accused

acted in belief of peril held properly refused. ANDERSON, C. J., and THOMAS and Charge for acquittal if jury has reasonable

doubt whether accused acted on well-founded Em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexea

100 SO.-41






belief of peril pretermitting other elements of not be convicted of any offense higher than self-defense held properly refused.

manslaughter in the second degree.” 11. Criminal law am 309-Charge as to pre- P. W. Shumate, of Guntersville, for apsumption of accused's good character held pellant. properly refused.

Harwell G. Davis, Atty. Gen., and Lamar Charge that accused is presumed to have Field, Asst. Atty. Gen., for the State. good character until contrary is proved, and that, his character having been put in issue by

ANDERSON, C. J. [1-3] The fact that one his testifying in his own behalf, state's failure to prove character was bad necessitated finding of the jurors, Tom Edmonds, did not reside it was good, held properly refused as incorrect in Marshall county, did not afford a ground statement of law.

for the challenge of the entire array of regu

lar jurors drawn for the week nor for a Op Rehearing.

motion to quash the entire venire. Section 12. Criminal law Om691-No one except party 29 of the Jury Law; Acts 1909, p. 317;

asking question can move to exclude answer Whitehead v. State, 206 Ala. 288, 90 South. as nonresponsive.

351; Smith v. State, 209 Ala. 666, 96 South. No one except party asking question can | 779, and cases there cited. Neither was there move to exclude nonresponsive answer on sole error in refusing to quash the venire because ground that it is nonresponsive.

of error in the name of Jurors Bagwell and 13. Homicide am 158(1)-Evidence of threat Kennemar. Section 29 of the Jury Law;

and drawing of gun some hours previous ad- Smith v. State, supra; Jones v. State, 17 Ala. missible.

App. 447, 86 South. 123. The fact that the Though killing occurred in the afternoon, trial court excused a grand juror for a good evidence that in the morning defendant told and sufficient cause or excuse did not affect deceased he was going to kill him, and drew the validity of the indictment; from aught his gun on him, was admissible; the drawing appearing there were a sufficient number left of the gun being in the nature of a threat, and

to constitute a legal grand jury. evidence thereof not being objectionable as relating to details of prior difficulty.

There was no error in permitting the state

to prove by the witness Ola Nailor that de Appeal from Circuit Court, Marshall Coun- fendant was armed with a gun when at her ty; W. W. Haralson, Judge.

house with the deceased the day of the killEmmett Davidson was convicted of murder ing and just previous thereto, that the dein the second degree, and appeals. Affirmed. he walked off by him with his gun drawn.

fendant threatened to kin deceased, and that A witness for the state testified that he These facts seem to have been a part of a saw the deceased lying in the road after he continuous transaction resulting in the homi. was shot, and that he said he was going to cide, which occurred shortly thereafter down die; that this was about 11 o'clock in the the road after the parties left the house of day; and that he died at 2:30 the next morn- | the witness. Blair v. State (Ala. Sup.) 99 ing. Whereupon the solicitor asked this ques-South. 314; Jordan v. State, 81 Ala. 20, 1 tion: "Now, what did he say, if anything, South. 577. about who shot him?" Over objection of the [4] There was no error in admitting the dedefendant, the witness answered: “He said, ceased's statement that the defendant shot ‘Emmett Davidson shot' him.” In his argu- him as a proper predicate was laid to render ment to the jury the solicitor said:

it a dying declaration. “Gentlemen of the jury, if you let this de- The other objections and exceptions to the fendant go under this testimony, there will be rulings on the evidence are so manifestly some more still, cold forms lying out yonder in without merit that a discussion of same can the cemeteries of this county."

serve no useful purpose. These charges were refused to defendant:

[5] That portion of the argument of the

solicitor as objected to was not so objection“(5) I charge you, gentlemen, that unless able as to constitute reversible error. Ex the evidence excludes every reasonable sup- parte State ex rel. Davis, Attorney General, position but that of defendant's guilt, you 210 Ala. 96, 97 South, 573. Moreover, there should find the defendant not guilty.” (17) The court charges the jury that a de

was no motion to exclude same. Lambert v. fepdant in a criminal case is presumed to have State, 208 Ala. 42, 93 South. 708. a good character until it is shown by competent [6] There was no error in refusing defend. and legal evidence that his character is bad, ant's requested charge 1. In the first place, and in this case the defendant's general char- it is not based on the evidence in the case. acter was put in issue when he testified in his Edwards v. State, 205 Ala. 160, 87 South. 179. own behalf, and, if the state failed to prove Second, it is abstract, as there was no evithat his character was bad, you should arrive dence that the character of the deceased was at the conclusion that the defendant's character is good.

that of a dangerous or violent man. "(18) The court charges the jury that under

[7-9] Charge 2 was properly refused. It the evidence in this case the defendant can- not otherwise bad, it instructs for an acquit

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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