48 So. 687 | Ala. | 1909
The witness John W. Chambers, haying testified on his direct examination that oné Colin S. Varnum, who had been examined as a witness on a former trial of the case, was dead, was then permitted to testify as to what the said Varnum had sworn on the former trial. On the cross-examination of Chambers he was asked by counsel how he knew that Varnum was dead, in answer to which he said: “I went to Varnum’s former home in Houston county, Ala., and he was not there. His family was there, and they told me he was dead, and that he died at the time named. I saw his family physician, who told me that he attended him in his last sickness, find that he (Varnum) was dead. His former neighbor^ told me th,at Varnum was dead. I did not see him myself after, death, and know that he is dead only from what these persons told me.” Thereupon the court, on motion of the plaintiff, excluded all of the testimony of the witness Chambers as to what Varnum swore on the former trial. In this there was no error. Evidence of the declarations of the physician and the neighbors as to the death of Varnum were hearsay, and by no rule of evidence admissible ; and to render declarations made by a member of the family of the deceased admissible as to such death, on the theory of pedigree evidence, it must appear, also, that the party making the declaration is dead, since, if living, his testimony would be not only obtainable, but the best evidence. — Elder v. State, 124 Ala. 69, 27 South. 305; White v. Strother, 11 Ala. 720; Jones on Evidence (2d Ed.) § 318.
There was evidence on the part of the defendant tending to show that her possession of the land was adverse, and evidence on the part of the plaintiff tending to show
As stated above, there was evidence tending to show an adverse possession, and evidence which also tended to show that the uncleared land on the 80-acre tract, to which the defendant set up adverse possession, was put to such uses as it was susceptible of in its then state, in the way of firewood, rail timber, etc., as would go to show actual possession. The court, therefore, erred in giving the general charge requested to find for the plaintiff as to the uncleared land on said 80-a.cre tract. The question was one that should have been left to the jury.
For the error indicated, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
