65 Ala. 294 | Ala. | 1880
— 1. The objections to the depositions of Christopher and Narcissa Boykin were not well taken. A caption is not indispensable to the authenticity of a deposition, when, by the certificate, it is shown to have been taken in obedience to the commission, by the commissioner therein named, the personal identity of the witness affirmed, his answers reduced .to writing by the commissioner, and that he was duly sworn. Every fact is certified to the court which is essential; and it is unimportant whether the facts are stated in a caption, which must.be certified, or embodied in a single certificate. The affirmation by the commissioner that he was “ not of kin, or counsel of and for the parties to this suit, or in any manner interested therein,” was a substantial compliance with the requisition of the statute.
2. But, in permitting Christopher Boykin to testify that he acquired possession of the lands from his deceased father, and that his father said he would give him title to the lands, the Circuit Court erred. True, the witness is not a nominal party to this suit; but the defendant is his grantee, claiming to have derived from him the title which was vested in his father while living. The appellant was claiming to recover an undivided one-eleventh part of the lands, as having descended to him from his father^ If the suit were between the appellant and Christopher Boykin, the latter would be within the words of the exception in the statute prohibiting a party from testifying “ to transactions with, or statements by a deceased person, tohose estate is interested in the result of the suit.” — Code of 1876, § 3058.' The purpose of the evidence, and the only, result to be reached by it, would be to take away the legal rights of the appellant as heir at law. The policy of the exception is the exclusion of the parties in interest, from testifying to transactions with, or statements by a deceased person, when the purpose of the evidence is to diminish the rights of the deceased, or of those, claiming in succession to him. — Key v. Jones, 52 Ala. 217. That the grantee of the witness is the nominal party defendant, can not render him competent. He is still within the spirit and policy of the exception, which' intends there shall be mutuality in the operation of the statute rendering parties competent witnesses. If death has sealed the lips of one party, the law intends, as to this species of evidence, to seal the lips of the living. A conveyance with or without warranty, or a transfer of the subject-matter of the suit to another, can not enable the living party to testify; or the policy of the exception could, at the pleasure of parties, be defeated, and
3. The certificate of acknowledgment of the conveyance from Christopher Boykin and wife to Smith is not in substantial compliance with the statute, and did not authorize the reading of the conveyance in evidence without further proof. — Code of 1876, § 2154; Keller v. Moore, 51 Ala. 340.
4. The certificate of the auditor would, probably, be a claim and color of title, which would support a possession under it as adverse, if continue'd so long that the statute of limitations operating upon it would bar an entry, or an action by the true owner for a* recovery of the lands. It was not offered, however, as an element of an adverse possession, but as a muniment of title — as evidence that the title of.the true owner had been divested, and that the defendent had succeeded to it. A tax sale, whether an individual or the State becomes the purchaser, will not pass title — will not divest the estate of the true owner- — is a mere nullity, unless the party claiming under it shows that all the provisions of law, precedent to, and authorizing the sale, have been complied with substantially. — 2 Brick. Dig. 469, §§ 28-38; Oliver v. Robinson, 58 Ala. 46. Without the offer to introduce, or the introduction of evidence of a compliance with the statute, the certificate of the auditor ought not to have been admitted.
5. The only claim of title asserted by Christopher Boykin, was under a parol gift from his father. The gift, if succeeded by possession, created a mere tenancy at will. The possession was by permission of the donor, and in subordination to his title, until it was asserted as hostile, so openly and notoriously that notice of the adverse, claim could be imputed to him. The possession, however long continued, if the donee recognizes and acknowledges the title of the donor, is not adverse, and -furnishes no room for the operation of the statute of limitations.— Collins v. Johnson, 57 Ala. 304. Hostility to the title of the true owner is an indispensable element of adverse possession. There is a want of evidence, in this record, of any claim of title or possession by Christopher Boykin, other than under the parol gift, or hostile to the title of his father. There Avas, by the order of sale of the lands, which he, as one of the administrators of his father, participated in'obtaining, and his purchase at the sale, a distinct’recognition and acknowledgment of the superiority of the title with which his father was clothed, and which, on his death, descended to his heirs. The sale terminated the tenancy at will; and he was in possession, afterwards, as a purchaser, no' ving received a conveyance
For the errors pointed out, the judgment is reversed, and the cause is remanded.