Bozeman v. Bozeman

83 Ala. 416 | Ala. | 1887

SOMERVILLE, J.

The only objection urged against the admission in evidence of the depositions offered by the contestants was, that no affidavit had been made showing a statutory ground or cause for taking them, such as is ordinarily required to procure the taking of testimony by deposition in civil cases. — Code, 1886, §§ 2801,2802.

In cases of this kind — an application made by executors or administrators to sell lands of a decedent’s estate, either for distribution, or the payment of debts — no such affidavit is "required, any more than in chancery cases. The statute expressly requires, that the evidence as to the facts stated in the application, and the necessity of the sale, shall be by the depositions of disinterested witnesses, which must be filed and recorded. — Code, 1886, §§ 2113, 2114. No special cause for taking depositions being required, an affidavit to show such cause is necessarily dispensed with, as in chancery practice, where interrogatories may be filed unsupported by affidavit. — Buie 52, Chancery Practice; Code, 1886, p. 820.'

With these depositions in evidence, the decree of the Probate Court is fully sustained. The other assignments of er~ ror, based on tbe admission of tbe mortgages of Josiah Bozeman to Simon & Bro., and the exclusion of tbe testimony of tbe witness Sam Bozeman, can not avail to reverse tbe decree, admitting them to be well taken. If we should correct these alleged errors, tbe result would be unaffected, because tbe change in tbe weight of testimony would be too trivial to shake our conviction as to tbe correctness of tbe finding of tbe probate judge on tbe facts of adverse possession.

Tbe judgment must be affirmed, on tbe authority of Bozeman v. Bozeman, 82 Ala. 389, where we held, that tbe adverse bolding of tbe heir for twenty years barred tbe application of tbe administrator to sell tbe lands for tbe purpose of distribution under tbe provisions of thé statute.

Affirmed.