Allison v. Robinson, 136 Ala. 434

Allison v. Robinson

136 Ala. 434 | Ala. | 1902

DOWDELL, J.

The law of, this case we think has been settled by the decisions of this court, in*the three former appeals, the first reported in 97 Ala. 596, the second in 109 Ala. 409 and the third in 124 Ala. 325. On the last trial — the' one front which the present appeal is taken — objection was made to the introduction in evidence of the jiidgment of the Federal Court of the Northern District of Alabama, on the ground that the judgment was not properly certified in accordance with the act of Congress. This objection was without merit. The judgment of the Federal Court of Alabama is not required by the act of Congress to be certified by the presiding judge, when used as evidence in a court of the State of Alabama. — Womack v. Dearman, 7 Port. 513; Turnbull v. Payson, 95 U. S. 418; Freeman on Judgments (2d ed.), § 411.

In 124 Ala. page 329, when this case was last here on appeal, it was said by this court, speaking through Sharpe, J.: “We need not state any affirmative rule as to what on the part of the widow having such right [quarantine], will convert her presumptively subordi*439nate possession into one adverse to tlie title. Doubtless a divestiture of lier dower right, as by a release to the heir or tenant, or other act amounting to a relinquishment of dower brought to the notice of the legal owner, would enable her thereafter to set up a possession which would be so adverse, and to perfect and prove ownership thereunder according to the usual rules'. But so long as the right of quarantine accompanies her possession, it exclude’s the owner’s' right to the possession, and' is sufficient tó defeat any action he might bring . therefor. While such is the status of the parties, no mere claim or assertion of ownership, however often and ..openly made, would' start the statute of limitations to run against the owner to, whom the right- of entry and the cause of action has not accrued. We think the authorities lead to this result. Allusions to the absence of such proof, made in the opinion rendered on the first appeal, should' not be taken as an' intimation that" such proof, if had, would alone be evidence of ownership in Mrs. Allison;” citing authorities. There was no evidence of a divestiture of the widow’s right of dower,’and consequently her assertion of a claim of ownership by an effort to devise by will, or anything she might have said in the' making of a will setting up a claim of ownership, would be alone and of itself unavailing to start the running of the statute against the owner. No reversible error, therefore, was committed in sustaining the objection to the evidence offered along this line.

As stated in the outset, we think the law of this case has already been fully settled on the former appeals, and beyond what we have already commented upon, there is no new phase of the evidence calling for any further discussion. The court properly gave the affirmative charge as requested by the plaintiff.

We find no error in the record, and the judgment will be affirmed.