95 Ala. 159 | Ala. | 1891
This is a statutory action in tbe nature of ejectment for tbe recovery of tbe possession of land and damages for tbe detention thereof. Tbe plaintiff undertook to sustain bis case by proof of prior actual possession under a claim of ownership. Tbe defendant offered in evidence tbe record of a deed to himself from tbe American Mortgage Company of Scotland, Limited, and also tbe record of a mortgage from tbe plaintiff and bis wife to that company. In offering tbe record of tbe mortgage tbe defendant’s counsel stated that be claimed through said mortgage under tbe deed which bad been already offered in evidence. On objection interposed by tbe plaintiff, tbe court excluded tbe records of both tbe deed and tbe mortgage. Tbe record of tbe deed which was excluded is not copied in tbe bill of exceptions. We are not informed in any way of its contents, nor does tbe record disclose upon what ground.it was excluded. In tbe absence of any showing to tbe contrary, we must presume that it was properly excluded. — Hutcheson v. Powell, 92 Ala. 619; Beadle v. Davidson, 75 Ala. 494.
Tbe exclusion of the deed left tbe defendant in tbe position of- failing to connect himself with tbe title under which be claimed. Tbe deed was tbe link connecting him with tbe title conveyed by tbe mortgage. Tbe defendant could not set up tbe outstanding title of tbe mortgage without connecting himself with it (Allen v. Kellam, 69 Ala. 442), and could not be injured by the exclusion of a mortgage to á third party standing in no relation of privity with him. His privity with tbe mortgagee, or tbe title conveyed by tbe mortgage, was proposed to be shown only by the deed, tbe proof of which bad already been rejected, and properly so, we must presume. Tbe mortgage, without tbe deed, would not tend to show tbe record title under which defendant proposed to bold tbe land, and no injury could result to him from tbe exclusion of tbe 'mortgage alone, as be failed in tbe proof of tbe deed. Eor this reason there can not be a reversal because of that ruling, however insufficient may have been tbe grounds suggested in support of it.
Tbe complaint describes tbe lands sued for only by tbe numbers of section, township and range. Tbe plaintiff offered evidence only as to bis prior possession of “the upper place” and “tbe lower place,” and as to tbe rental value thereof. All the evidence is set out in tbe bill of exceptions, and we find nothing at all in tbe record tending to show that tbe lands referred to by tbe witnesses are tbe identical lands described in tbe complaint. Tbe witnesses
Reversed and remanded.
