57 So. 374 | Ala. | 1912
This action is statutory ejectment. All parties claim title through a common source, that of David S. Williams, who died in 1890; the land in question forming his homestead or a part of it. David S. Williams left surviving him a widow and nine chil
Four errors are assigned and argued by appellant. The first two assignments are based upon a ruling of the •court, allowing the plaintiff, as a witness, to be asked by his counsel, “Who claimed to own the land in question at that time?” and the answer thereto, “My father, David S. Williams.”
The third assignment was based upon the action of the court in allowing the same witness to testify as to the length of time his father was in possession of the land, using and claiming it as his own.
In the view we take of the case, after a close examination of the record and all the evidence, we are of the opinion that, if there could have been any error by the court in admitting this testimony (and we do not say that there could under the peculiar facts of this case), it was clearly without injury or detriment to the defendant. His title depended solely upon that of David S. Williams, and the only effect or purpose of this evidence Avas to show the title or possession of David S. Williams during his lifetime.
While some of the evidence showed an attempted sale of these lands for partition, it was not sufficient to carry that question to the jury, for there was no evidence that the defendant or any one else had even thus acquired title in or to these lands, or any part thereof; and, as the defendant’s sole claim of title was that from a part of the heirs of the said David S. Williams, the plaintiff was unquestionably entitled to recover his undivided one-eightli thereof. Consequently the trial court did not err in so instructing the jury.
Affirmed.