50 So. 93 | Ala. | 1909
Lead Opinion
This was an action of unlawful detainer, commenced by appellee against appellant. It was removed to the circuit court on petition, and thereupon the title became the issue between the parties.— Code 1896, § 2147 et seq.
The lands in question originally belonged to E. G. Terrell. In 1886 all of the lands owned by Terrell at his death were partitioned, in the probate court, among his heirs. The courthouse of Marion county burned, destroying the evidence of the action taken in the partition. of these lands. On September 12, 1888, the several
To whom of the two, viz., E. W. Terrell or Mary T. Clark, this mentioned land was allotted on the partition, was an issue of fact for the jury. It is evident that both deeds, in the respect that they recite the original allotment to the one or to the other, or to both, evidence confusion and mistake. Counsel for appellant was given, at his request, a special charge affirming one of thé issues to be as we have indicated. This question was submitted to the jury under all the evidence. The predecessor in right of each party claimed to have had pos
The deed from John T. Terrell and others to Mary Clark was admissible as color of title, notwithstanding its acknowledgment was defective, and the court did not err in admitting it. — Jones v. Bugler, 95 Ala. 529, 10 South. 345.
The tax records offered by defendant should have been received in evidence on the issue of adverse possession. — Gist v. Beaumont, 104 Ala. 347, 16 South. 20; Anniston Co. v. Edmondson, 141 Ala. 366, 37 South. 424.
Assignments numbered 9 and 10 are not supported by the record, and hence cannot be reviewed.
The effort to show a declaration by an agent of Mary T.-Clark and Wm. Akins as to the location of the line between the Mary Clark and R. W. Terrell land was properly disallowed. The character and scope of the agency imputed to the alleged declarant was- not indicated, and hence the inquiry was not brought within the ruling in Pearson v. Adams, 129 Ala. 157, 29 South. 977.
The charge set out in assignment 16 Was erroneously given for plaintiff, because it pretérmitted consideration of adverse possession — an issue to be determined by the jury.
The charge made the basis of the seventeenth assignment might well have been refused, because calculated to mislead the jury; but the giving of it did not constitute error.
There is no merit in the other errors assigned and urged in argument. The appellant expressly waived a number of his assignments.
For the errors indicated, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Rehearing
On Rehearing.
It appears from the record that the cause was tried below upon the strength of the re