97 So. 822 | Ala. | 1923
On a former appeal in this case a judgment for the present appellee was reversed on the ground that the trial court erred in overruling appellant's motion for a new trial. Again we have reached the conclusion that the trial court should have granted appellant's motion for a new trial, but doubt whether it may not be better to omit any discussion of the evidence which has led to this conclusion. However, we state in outline the facts as we find them: Appellee was interested in the estate of one Hewitt, deceased, who died seized and possessed of the land in controversy. In 1887, she being then the widow of one Mills, and a sale of the property for division or other purpose of administration pending, she agreed with Smithson, who represented Harton, under whom appellant (plaintiff in the trial court) claims title — why or on what occasion the agreement was made is not clear — that she would bid in this land and pay for it with money ($1,200, or some such amount) furnished by Smithson, who got the money from Harton, and then make title to Smithson. Smithson furnished the money, appellee, who was then known to everybody concerned as M. E. Mills, bid in the property, and on the day she received a deed from the commissioners appointed to make the sale executed her (M. E. Mills') deed to Smithson. We accept these facts for the reason that the muniments of title bear them out, and because the testimony of Noble Smithson, then a lawyer in Jefferson county, but residing in Knoxville, Tenn., since 1893, against whose candor and freedom from bias at this time nothing is said or, we presume, can be said, not to mention the testimony of Harton, as well as the incredibilities and contradictions affecting the testimony of appellee and her daughter, appear to leave no other course open. Appellee denies the execution of the deed to Smithson; her daughter denies that the name M. E. Mills is in the handwriting of her mother. But the deed was acknowledged in due form before a notary, a man well known and of good repute in his day, and its genuineness is supported by the oath of Smithson, who testifies that it was executed and acknowledged in his presence. The certificate of the notary, unless and until impeached, is conclusive of the facts therein stated which the officer is by law authorized to state, and to impeach it the evidence ought to be clear and convincing, reaching a high degree of certainty, leaving in the mind no fair, just doubts. Logan *315
v. Chastang,
But appellee contends that, even if she executed the deed to Smithson, it still was a nullity, for the reason that it appears to have been executed without the assent and concurrence of her then husband, Finnegan, manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land. Code of 1886, § 2348. Her explanation of the fact that in the transaction with Smithson she used the name M. E. Mills (and by that name must have been known in the administration of her father's estate, for otherwise we cannot conceive that Smithson would have dealt with her as M. E. Mills) is that she wished to protect her children by Mills from any interest or claim her husband, Finnegan, or his children, might acquire therein by his marriage with her — a novel, if ineffectual, scheme. If she executed the deed to Smithson, and did so in pursuance of an agreement which antedated the deed to herself, and in consideration of money previously advanced to her for the purpose (and of these facts we entertain no doubt whatsoever) then of course this explanation falls to the ground, and no reason appears why she should have used the name of her former husband, Mills, who had abandoned her years before, and then died, when the name of her husband at the time was Finnegan. A brother-in-law, one Payne, testified that he remembered that in the fall of 1886, more than 35 years before the trial, appellee told him she was going to Macon to get married. Answering interrogatories propounded to her prior to the first trial, appellee fell into some confusion both as to the time and place of her marriage to Finnegan, which she explains by saying that "it came up so sudden." At the trial of the cause which came under review in Windsor Realty Co. v. Finnegan,
It is said in the brief for appellee that appellant has abandoned all question as to the validity of appellee's marriage to Finnegan, and, in fact, all other questions except (1) the question raised by the refusal of the general affirmative charge requested by appellant on the ground that its adverse possession for 10 years had been established without conflict in the evidence, and (2) the question raised on the argument made to the jury by counsel for appellant. Appellee concedes, however, that appellant has expressed its reliance upon the assignment of error based upon the overruling of its motion for a new trial, but suggests that the argument as to the motion rests exclusively on the two grounds noted above. It may be conceded that appellant's brief, so far as comprised under the formal head of "Argument," sustains the interpretation put upon it by appellee; but it cannot be denied that both parties to this appeal have in their briefs stated the evidence with a view to a decision of the issues contested in the trial court, viz.: (1) Whether appellee executed the deed to Smithson; and (2) whether at that time she was a married woman — there being no denial, nor any occasion to deny, that for many years before the trial she had been the lawful wife of Finnegan. Moreover, appellee's contention was that the instrument purporting to pass title from her to Smithson was a forgery. This made it necessary for appellant, if it would establish its adverse possession, or that of those under whom it claimed, as coextensive with the limits of the property in suit, to prove the bona fides, the genuineness, of its color of title (Saltmarsh v. Crommelin,
Further consideration is obviously unnecessary, but, conceding for the moment that the jury, in the exercise of their primary right as triers of fact, might have found appellee to have been a married woman at the time she executed the deed to Smithson, the judgment of the court is that, while the issue now to be stated was due to be submitted to the jury in the first place (Snow v. Bray,
Appellee comments on the fact that during a part of the time in question the legal title was in one Baker under a deed executed by Harton and his wife; but Harton testified that Baker never went into possession; that the possession remained in his (Harton's) tenant, he (Harton) collecting rents and paying taxes. Some years afterwards the mortgage for a large part of the purchase money was foreclosed and the title passed back to Harton. The facts in reference to these transitions of title are undisputed, and we find no sufficient reason to doubt the trustworthiness of the supporting testimony. True, Harton's circumstances considered, we are led to suspect that the purpose of the conveyance to Baker was to circumvent the grantor's creditors; but in this we find no sufficient reason for doubting the fact of a continuous bona fide adverse possession.
Errors are assigned upon the remarks to the jury of counsel for defendant tending to arouse prejudice against a material witness for plaintiff on the ground that he was responsible for differences with his wife, from whom, at the time of the trial, he had been divorced, which differences caused her, in 1905, to refuse to allow him further to act as her agent. There was no evidence going to show that the witness in question was blameworthy in bringing about such differences. The law indulges no presumption against the husband, nor would any evidence on the subject have been admissible. However, we presume such cause of exception will not recur in its present form, and for that reason pretermit discussion as to the propriety of these rulings.
The conclusion is that the trial court erred in overruling plaintiff's motion for a new trial.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur. *317