133 Ala. 377 | Ala. | 1901
This statutory action in the nature of ejectment is prosecuted by Clark Butler and
Nor did the court err in excluding the proposed evidence as to declarations of W. H. Butler to the effect that he had given the land to Daniel, the defendant. Of course, these declarations were not competent, and they were not offered to show a conveyance to Daniel. Their sole office in the case would have been to show that Daniel, and not W. I-L, held the possession of the premises, and that the possession of the former Avas adverse to the latter. Considered as showing this, they also necessarily showed their OAvn incompetency, since with the declarant out of possession there Avas no predicate
As to the further declarations of W. H. Butler to the effect that he had put Daniel in possession, it need only to be said that their tendency was to prove what was not controverted in the case and what was of detriment rather than advantage to the defendant, to-wit, that Daniel entered and held possession by permission of his father.
On the considerations adverted to first above with the evidence as it was before the jury, the plaintiffs were entitled to the affirmative charge which the court gave; and they would have been none the less so entitled had the testimony of Whit Butler that he “never knew it to be anybody’s lands hut W. H. Butler’s” and of T. J. Lovvorni that he “never heard of anybody claiming the land but W. H. Butler,” been excluded. Hence we need not inquire whether the court’s rulings in respect of said testimony were correct or not.
Plaintiffs and defendant being tenants in common in the land as heirs at law of W. H. Butler, deceased, the effect of the judgment for plaintiffs is to let them into possession with the defendant. As each one of the dispossessed tenants is entitled to be thus let in, it is not material whether all of them have joined in this action.
Affirmed.