Appeal from Circuit Court, Marion Coun- [had made the same proposition to defendant ty; J. J. Curtis, Judge. Action in ejectment by K. V. Fite, as executor of J. F. Earnest, deceased, against W. L. Earnest, to recover a house and lot. Judgment for plaintiff, and defendant appeals. Affirmed. as he had to Blakeney-that he could live on this place without paying rent. There was evidence of statements, made by defendant after testator's death, tending to show that he considered this property as a part of his father's (testator's) estate. Other questions are sufficiently stated in the opinion. Defendant is a son-one of three children of J. F. Earnest, the testator, and his contention is that he acquired title to the land in suit by adverse possession thereof from September, 1895, down to the time of the suit; and also by prescriptive holding of 20 years or more. It appears without dispute 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. The jury found for plaintiff, and there was judgment accordingly, from which defendant appeals. W. F. Finch, of Jasper, for appellant. SOMERVILLE, J. [1] Section 2830 of the Defendant and his wife testified that theyCode 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 unito 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 lasted upon land under a bona fide claim of pur20 years heard the testator (who died in 1920) say that he had given the place to defendant, or refer to it as defendant's home. Defendant's evidence shows that he has occupied the place as his home ever since 1895, with the exception of three years (19041907); and that for those years he received the rents which were collected from tenants by the testator, who had rented the place to several successive tenants. It shows, also, that defendant, throughout the period of his occupancy, made valuable improvements by building a barn, additions to the dwelling, and new fences, all with the knowledge of plaintiff's testator, who lived in the community. Defendant never assessed the land for taxes, nor was it ever assessed against him until 1921, after testator's death, though he regularly assessed other property, real and personal, owned by himself. On the contrary, with his knowledge, it was assessed by the testator, who paid the taxes annually down to his death in 1920. Defendant testified that he paid the taxes "several times," taking receipts not in his own name, how ever. On plaintiff's objection, the trial judge excluded the question to defendant, "Did your father, at any time since you have been liv ing there, ever ask you to pay him any rent on that property?" and excluded also the questions to defendant, "At whose request did your father rent the property to Joe Guin?" and, "In whose care did you leave it while you were at Glen Allen?" chase or inheritance, though without color of title. But section 2830 of the Code of 1907 expressly denies the acquisition of title to land by adverse possession unless the claimant shows (1) that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the probate judge for ten years before the commencement of the action; or (2) that he and those through whom he claims shall have annually listed the land for taxation in the proper county for ten years prior to the commencement of the action, if the land is subject to taxation; or (3) unless he derives title by descent cast, or devise from a predecessor in the title who was in possession of the land. If the claimant does not bring his possession within one of these three specifications, his claim of title by adverse possession must fail. Cox v. Broderick, 208 Ala. 690, 95 South. 186; McCraw v. Lindsey, 209 Ala. 214, 95 South. 898; Kilpatrick v. Trotter, 185 Ala. 546, 64 South. 589; Wright v. L. & N. R. R. Co., 203 Ala. 118, 121, 82 South, 132; Childs v. Floyd, 188 Ala. 556, 66 South. 473; s. c., 194 Ala. 651, 70 South. 121. See, also, Kretzer v. Jackson, 183 Ala. 642, 644, 62 South. 811. In the instant case it must be noted that defendant's claim does not come within the requirements of section 2830, Code 1907; and hence he could acquire title by adverse possession only by the perfection of the ten-year period prior to May 1, 1908. 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 (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 nothnot to one who claims under a bona fide claiming of other features of the evidence. of purchase. Roe v. Doe, 159 Ala. 614, 48 South. 1033; Holt v. Adams, 121 Ala. 664, 25 South. 716; Sledge v. Singley, 139 Ala. 346, 37 South. 98." All of the cases cited were under the old statute, and it is clear that the writer of the opinion inadvertently referred to the new statute instead of the old one. [2] The admissions by defendant tending ing to show that he regarded the property in question as a part of his father's estate, though made after the lapse of 10 or 20 years from the inception of his possession, were competent and admissible as tending to show that his possession had not in fact been 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: "By the terms of the statute (Acts 1892-93, p. 478; Code 1896, § 1541 et seq. See Code 1907, now section 2830), requiring the record of claims of adverse possession under conditions therein defined, it had no application to a rightful possession, or to a possession under color of title, or to a possession under Bona fide claim of inheritance or purchase." 317, distinguishing Lee v. Thompson, 99 Ala. 95, 11 South. 672. [3, 4] The undisputed evidence showed that the testator, defendant's father, gave to defendant at least the use of the property as a home, and hence it would have added nothing to defendant's case to have shown that his father never demanded of him any rent. But, as the question did not show, and coun expected, the question was prima facie objectionable as calling for a statement by a deceased person whose estate was interested in the result of the suit. Code, § 4007. That 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 writer of the opinion very clearly did not mean to apply to section 2830, Code 1907, the observation made with respect to the terms and scope of the original act. The headnote, [5] 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 later cases have repeated the error. M. & G. R. R. Co. v. Rutherford, 184 Ala. 204, 63 South. 1003; Stewart Bros. v. Ransom, 200 Ala. 304, 76 South. 70; Short v. De Bardeleben Coal Co., 208 Ala. 356, 94 South. 285. In so far as these cases involved the construction of section 2830, Code 1907, they must be overruled. What constitutes adverse possession of land by one who enters under a parol gift from the owner has been repeatedly discussed and stated by this court. Collins v. Johnson, 57 Ala. 304; Boykin v. Smith, 65 Ala. 294; Vandiver v. Stickney, 75 Ala. 225; Potts v. Coleman, 67 Ala. 221, 227; Lee v. Thompson, 99 Ala. 95, 11 South. 672; Gillespie v. Gillespie, 149 Ala. 184, 43 South. 12. In Gillespie v. Gillespie, supra, it was said: "Where a donor alone assesses and pays the taxes on the alleged subject of the gift for a period of nearly twenty years succeeding the time of the alleged gift [this] is, as matter of evidence and unexplained, inconsistent with a possession by a donee that may ripen into a fee estate; and such acquiescence in the annual proclamation by a donor of his title is a fact of strong probative force that the donee's possession was in subordination to the title and in recognition of it." To the same effect are Driver v. King, 145 Ala. 585, 596, 40 South. 315, and Anniston, etc., Co. v. Edmondson, 141 Ala. 366, 37 South. 424. of the rents during the three years of defendant's absence, were properly excluded. "A conversation between two persons is a transaction by each with the other, within the meaning of the statute (Code. § 4007), whether the actual talking be done by both or only by one." Buye v. Ala. Marble Quarries, 199 Ala. 589, 75 South. 9. However, those matters are clearly shown by other parts of defendant's testimony, in connection with the testimony of Joe Guin. [6] Under the same statutory rule of exclusion, defendant could not be allowed to state that his father gave him the property, notwithstanding the fact that one of plaintiff's witnesses had testified that defendant suggested to him, after his father's death, that witness could swear that the father had given witness' wife a place, and that he had also given defendant the place in question. The assignments of error present several other rulings on evidence which are either clearly without merit, or are not argued in brief. [7] Estoppels in pais cannot affect the title to land in a court of law. McPherson v. Walters, 16 Ala. 714; Donehoo v. Johnson, 120 Ala. 438, 24 South. 888; Boone v. Gulf, etc., R. Co., 201 Ala. 560, 78 South. 956. Hence the instructions requested by defendant on the theory that plaintiff is estopped from asserting title because his testator knew that defendant was making valuable improvements on the place, and made no ob jection thereto, and asserted no claim of his own, were properly refused. Action by Gus May against Sol Middleton. Judgment for defendant, and plaintiff ap In courts of equity a different rule pre-peals. Transferred from Court of Appeals vails. 5 Michie, Dig. 704, § 73. [8] As to the claim of title by prescription, based on possession under claim of right for 20 years or more, while the requirements of the statute (section 2830, Code 1907) are not applicable to such a claim (Jones V. Rutledge, 202 Ala. 213, 80 South. 35), yet the evidence before the court did not permit the giving of the general affirmative charge for defendant on that issue. On the contrary, it would scarcely support the presumption of a written grant. We find no error in the record, and the judgment will be affirmed. Affirmed. under section 6, p. 450, Acts 1911. Affirmed. The action is in detinue to recover certain personal property, The defendant suggested that plaintiff's claim was based on a mortgage, and asked that the amount of the debt secured by it be ascertained. The main mortgage, which included the debts secured by several smaller mortgages, was for $1,600, was signed by the defendant and four of his children, and included their several individual debts, as alleged, to plaintiff. As to the amounts of original indebtedness, and also as to the amounts paid on it in money, cotton, and other property, the evidence was in dispute. The evidence for defendant tended to show that the actual indebtedness covered by the mortgage had been discharged by payments made. The trial judge gave the following charges requested by the defendant: "(1) The burden is on the plaintiff to show to the jury the amount of the indebtedness due on the mortgages. "(2) The plaintiff cannot recover under the 1. Detinue 18-Burden of proof in action of $1,600 mortgage if the two mules and cultidetinue, stated. Under Code 1907, § 3789, where defendant in detinue suggests that plaintiff's claim is based on mortgage debt, burden is upon defendant to show existence of mortgage, then upon plaintiff to show amount of indebtedness under mortgage, and then upon defendant to show payments or discharge or other defense authorized by section 3791. 2. Trial 234(7)-Instructions as to burden of proof held not misleading. Instructions as to burden of proof and extent of defendant's obligation, in action of detinue wherein defendant suggested plaintiff's claim was based on mortgage, when considered together, held not misleading. vator were of equal value to or greater than by the mortgage. the debt owing by the defendant and secured "(3) Under the suggestion that the plaintiff claims the property under a mortgage, the burden is upon the plaintiff to show the correct amount due him by the defendant." The giving of these several charges is separately assigned for error. At the plaintiff's request the following charges were given: "(1) The mortgage of March 22d, securing $1,600, is prima facie evidence that defendant was indebted to plaintiff in the sum of $1,250, and the burden is on the defendant to show the true amount, if that amount was not true. "(2) It is immaterial whether the $1,250 recited so to be due in the mortgage of March 22, 1922, was in part the indebtedness of his children; by executing the mortgage, the indebtedness of his children would become his indebtedness, and he would not be entitled to reduce the amount of the mortgage indebtedness by the fact that part of it was his children's. "(3) The burden is on defendant to prove the amount of payments he has paid.". The jury found for the defendant, and there was judgment accordingly. The plaintiff's motion for new trial being overruled (the motion and ruling being shown by the bill of exceptions only), plaintiff appeals from the judgment, and assigns for error also the ruling on his motion. Callahan & Harris, of Decatur, for appel lant. (100 So.) Sample & Kilpatrick, of Hartsells, for appellee. SOMERVILLE, J. [1] When the defendant in detinue suggests that the plaintiff's claim is based on a mortgage, and requires the ascertainment of the amount of the mortgage debt, as provided by section 3789 of the Code, the burden is, of course, on the defendant to show the existence of the mortgage claim. Thereupon, the action assumes the character, quoad hoc of an action on a note or other indebtedness, and the burden devolves upon the plaintiff to show the amount of the indebtedness under his mortgage. This he may do by showing a note, or a recital in the mortgage, or an account stated, or by independent evidence. When a debt is thus shown prima facie, the burden devolves on the defendant to show that it has been paid or discharged in whole or in part, or to make any other defense authorized by the statute. Code, 3791. [2] Standing alone, the several instructions given to the jury at the instance of defendant might well have been misleading as to the burden of proof resting on plaintiff and defendant respectively, and also as to the extent of defendant's obligation as to the whole indebtedness secured. But their ambiguity and misleading tendency are, we think, entirely removed by the charges given for plaintiff, as well as by the general oral charge. The jury could not have misunderstood the law applicable to the case, and reversible error cannot be found in the giving of the charges complained of. [3] While an appeal from the ruling of the trial court on a motion for new trial will not be entertained unless the record proper shows a judgment thereon (Clements v. Hodgens, 210 Ala. 486, 98 South. 467), a recital in the bill of exceptions of the motion, the ruling of the court, and an exception thereto by the party adversely affected, is sufficient to present the question for review on appeal from the judgment on the verdict (Dees V. Lindsey Mill Co., 210 Ala. 183, 97 South. 647). [4] We have given thorough consideration to the evidence as to the existence of a balance due on the mortgage indebtedness. It is in conflict, and it may be that the weight of the evidence favors the claims of plaintiff; but we are unable to affirm that the weight of the evidence is so overwhelming in favor of plaintiff as to show that the verdict for defendant is palpably wrong. We must therefore decline to reverse the ruling of the trial court sustaining the verdict of the jury. Finding no error in the record, the judgment will be affirmed. Affirmed. ANDERSON, C. J., and THOMAS and MILLER, JJ., concur. 5. Criminal law 723(1)-Statements by solicitor in argument held not prejudicial. In prosecution for murder, statement by solicitor in argument that, if jury let accused go, there would be more still, cold forms in cemeteries, held not so objectionable as to. constitute reversible error. 6. Criminal law 814(3)-Abstract instruction not based on evidence held properly refused. Abstract instruction not based on evidence in case held properly refused. 7. Criminal law 798 (1)-Charge for acquittal if single juror has reasonable doubt held properly refused. Charge to acquit if any juror had reasonable doubt of deceased's guilt held properly refused, though such fact would prevent conviction. 8. Criminal law 789(15)-Charge for acquittal unless evidence excluded every reasonable "supposition" properly refused. Charge to acquit unless evidence excludes every reasonable "supposition" but defendant's guilt held properly refused. 9. Criminal law 829(1)-Charge substantially covered by charges given held properly refused. Charges substantially covered by several given charges as well as by oral charge of court were properly refused. 10. Homicide 300 (12)-Charge for acquittal For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 309-Charge as to presumption of accused's good character held properly refused. Charge that accused is presumed to have good character until contrary is proved, and that, his character having been put in issue by his testifying in his own behalf, state's failure to prove character was bad necessitated finding it was good, held properly refused as incorrect statement of law. On Rehearing. 12. Criminal law 691-No one except party asking question can move to exclude answer as nonresponsive. No one except party asking question can move to exclude nonresponsive answer on sole ground that it is nonresponsive. 13. Homicide 158(1)-Evidence of threat and drawing of gun some hours previous admissible. Though killing occurred in the afternoon, evidence that in the morning defendant told deceased he was going to kill him, and drew his gun on him, was admissible; the drawing of the gun being in the nature of a threat, and evidence thereof not being objectionable as relating to details of prior difficulty. P. W. Shumate, of Guntersville, for appellant. Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State. of the jurors, Tom Edmonds, did not reside in Marshall county, did not afford a ground for the challenge of the entire array of regular jurors drawn for the week nor for a motion to quash the entire venire. Section 29 of the Jury Law; Acts 1909, p. 317; Whitehead v. State, 206 Ala. 288, 90 South. 351; Smith v. State, 209 Ala. 666, 96 South. 779, and cases there cited. Neither was there error in refusing to quash the venire because of error in the name of Jurors Bagwell and Kennemar. Section 29 of the Jury Law; Smith v. State, supra; Jones v. State, 17 Ala. App. 447, 86 South. 123. The fact that the trial court excused a grand juror for a good and sufficient cause or excuse did not affect the validity of the indictment; from aught appearing there were a sufficient number left to constitute a legal grand jury. ANDERSON, C. J. [1-3] The fact that one house with the deceased the day of the kill fendant threatened to kill deceased, and that There was no error in permitting the state to prove by the witness Ola Nailor that deAppeal from Circuit Court, Marshall Coun- fendant was armed with a gun when at her ty; W. W. Haralson, Judge. Emmett Davidson was convicted of murdering and just previous thereto, that the dein the second degree, and appeals. Affirmed. A witness for the state testified that he saw the deceased lying in the road after he was shot, and that he said he was going to die; that this was about 11 o'clock in the day; and that he died at 2:30 the next morning. Whereupon the solicitor asked this question: "Now, what did he say, if anything, about who shot him?" Over objection of the defendant, the witness answered: "He said, 'Emmett Davidson shot' him." In his argument to the jury the solicitor said: "Gentlemen of the jury, if you let this defendant go under this testimony, there will be some more still, cold forms lying out yonder in the cemeteries of this county." These charges were refused to defendant: "(5) I charge you, gentlemen, that unless the evidence excludes every reasonable supposition but that of defendant's guilt, you should find the defendant not guilty.' "(17) The court charges the jury that a defendant in a criminal case is presumed to have a good character until it is shown by competent and legal evidence that his character is bad, and in this case the defendant's general character was put in issue when he testified in his own behalf, and, if the state failed to prove that his character was bad, you should arrive at the conclusion that the defendant's character is good. "(18) The court charges the jury that under the evidence in this case the defendant can he walked off by him with his gun drawn. These facts seem to have been a part of a continuous transaction resulting in the homicide, which occurred shortly thereafter down the road after the parties left the house of the witness. Blair v. State (Ala. Sup.) 99 South. 314; Jordan v. State, 81 Ala. 20, 1 South. 577. [4] There was no error in admitting the deceased's statement that the defendant shot him as a proper predicate was laid to render it a dying declaration. The other objections and exceptions to the rulings on the evidence are so manifestly without merit that a discussion of same can serve no useful purpose. [5] That portion of the argument of the solicitor as objected to was not so objectionable as to constitute reversible error. Ex parte State ex rel. Davis, Attorney General, 210 Ala. 96, 97 South. 573. Moreover, there was no motion to exclude same. Lambert v. State, 208 Ala. 42, 93 South. 708. [6] There was no error in refusing defendant's requested charge 1. In the first place, it is not based on the evidence in the case. Edwards v. State, 205 Ala., 160, 87 South. 179. Second, it is abstract, as there was no evidence that the character of the deceased was that of a dangerous or violent man. 17-9] Charge 2 was properly refused. If not otherwise bad, it instructs for an acquit |