Elliott v. Dycke

78 Ala. 150 | Ala. | 1884

STONE, C. J.

The questions of meritorious contestation in this case are very few, and, as matters of law, they are well settled. The title set up by defendant was derived from plaintiff, and this estops him from denying that plaintiff originally had title. But it would seem this principle need not be invoked. The testimony is, that Thomas Garrett had been in possession of the lands sued for, and he was still in possession when they were sold by the sheriff, bought by Cothran & Elliott, and title made to them. The judgments and executions, the levies, and the sheriff’s returns, were also put in evidence. This made a prima faeie case of title in Cothran & Elliott, and devolved cn defendants the necessity of showing a better title, either by documentary evidence, or by independent adverse holding for a sufficient length of time to bar a recovery. 1 Brick. Dig. 627, § 40; Badger v. Lyon, 7 Ala. 564.

The defense relied on is two-fold ; and first — peaceable, adverse possession for ten years before suit brought. Actual occupancy — pedis possessio by the defendant himself — is not necessary to maintain this line of defense. If it be shown that McKenzie has been in possession, claiming in independent right for the requisite t'en years, this is enough. And if Thomas Garrett, the elder, held possession under him, or under Cadow, his graptor, this constituted him a tenant, and the possession was that of the landlord. So, if Garrett was in possession from Cadow or McKenzie, simply by permission, whether he was paying rent beyond taxes, or not, he could not, while he retained the possession, throw off his allegiance, and become the tenant of another, unless he shows that other has acquired the title of his original landlord, pending the occupancy. The law holds a tenant to very strict allegiance to his landlord. Randolph, v. Carlton, 8 Ala. 606. It is thus shown that, if Garrett first agreed, either with Cadow, Cadow, McKenzie & Co., or with McKenzie, or with an agent acting for them, to hold and occupy the lands under him or them, there is no testimony in this record that he ever afterwards did' or could transfer his allegiance to another. The paper alleged to have been executed afterwards in the presence of Cooper and Bradford, would, in such case, amount to nothing. — 2 Brick. Dig. 194, § 4.

The other line of defense is an alleged conveyance of the lands in 1862, by plaintiff to Cadow, and by him subsequently, and before this suit was brought, conveyed to McKepzie, who was let in to defend. The other defendants are his tenants, claiming no title in themselves. The deed from Cadow to McKenzie bears date January, 1870, and there does not appear to be any defect in the proof of its execution. As matter of judicial ascertainment, we hold it conveyed to McKenzie all the title which Cadow had. The execution of the deed was proved, and both it and the proof of its execution were in evidence. This deed does not appear to have been one of the seriously disputed links in defendant’s chain of title.

Was the title to the lands conveyed by Elliott to Cadow? Elliott alone executed the conveyance, if conveyance there was, using the name Cothran & Elliott, the partnership name. They were partners. We need not inquire whether a deed thus executed conveys the entire title, or only the interest of the partner who executes the conveyance.— Caldwell v. Parmer, 56 Ala. 405. Elliott alone executed the deed, if one was executed, and he alone brings this suit. He was certainly competent to convey away all the legal title he can assert in an action of ejectment, brought in his own right. The conveyance, if made, is as broad as the right asserted by his suit.

The theory of the defense on documentary title is as follows : It is claimed for defendants that, in 1862, Oadow, the leading member of the firm of Cadow, McKenzie & Oo., purchased from Elliott, of the firm of Cothran & Elliott, the lands in controversy, together with all the unsatisfied claims Cothran & Elliott held against Thomas Garrett, for the sum of five thousand and four dollars, paid in cash; and the said Cothran being absent from home, that a conveyance of the lands w*as then made to Cadow by Elliott, he executing it in the firm name, Cothran & Elliott. An alleged copy of this deed was offered and received in evidence, purporting to be attested by two subscribing witnesses. The proof made tends to show that this deed was made in Rome, Georgia, where Cothran & Elliott had their residence. The firm of Cadow, McKenzie & Co. did business in Charleston, South Carolina. The proof then tends to show that this deed, together with the uncollected claims purchased from Elliott, was, not long afterwards, mailed to a firm of attorneys residing in Alabama, in a county adjoining the one in which the lands were then situate, and in which Garrett resided ; and there was proof that such attorneys received said package inclosing the deed, and that it was after-wards destroyed by fire. Elliott denied the making of the deed, claimed that he only executed a bond for title, and that only one thousand dollars of the purchase-money had been paid. It is thus shown that the making, the destruction or loss, and the contents of the deed, were the controlling questions in issue in the court below.

The deed being executed in Georgia, the presumption, in the absence of all testimony on the subject, is, that the subscribing witnesses had their domicile in that State. The defendants were not called upon to account for their absence, but were rightly permitted to prove the execution of the deed by other testimony. If the deed had been destroyed, the handwriting of the witnesses could not be proved, and defendants were forced to other sources for proof of execution. The court did not err in permitting the proof to be made by the witness Oadow, nor by other witnesses who testified to Elliott’s admissions, and to his acts indicating that lie set np no claim to the lands. — Ellerson v. The State, 69 Ala. 1.

The testimony of Oadow, if believed, showed that the deed was executed ; and it is also shown, if the testimony be legal, and be believed, that Elliott’s deed to Cadow was mailed to the said firm of attorneys in Alabama; and there is testimony tending to show the deed was received by the attorneys, and was afterwards destroyed in the burning of their office. Two questions arise on this feature of the case: First, was there a sufficient predicate laid for the introduction of secondary evidence of the contents of'the deed ? We will not enter into any collation of the testimony, but we have no hesitation in holding there was a sufficiency of legal evidence of the execution and loss, or destruction of the deed, to authorize secondary proof of both its execution and contents. — 1 Brick. Dig. 848-54, §§ 632, 639, 641, 654, 670, 681, 686, 698, 701, 705, 706, 708, 712, 713, 719, 722, 724.

When a witness is shown to be dead, or beyond the jurisdiction of the court, written entries and memorials of a transaction, entered in the usual course of business, and which are shown to be in the handwriting of the absent or deceased witness, and purport or are shown to have been made at or about the time of such alleged transaction, are admissible evidence, in any issue involving the transaction to which they relate. — 1 Greenl. Ev. § 118, and notes; Union Bank v. Knapp, 3 Pick. 96 (s. c., 15 Amer. Dec. 181, and note); Clemens v. Patton, 9 Por. 289 ; Batre v. Simpson, 4 Ala. 305; Grant v. Cole, 8 Ala. 519; Avery v. Avery, 49 Ala. 193; Dismukes v. Tolson, 67 Ala. 386 ; Chaffee v. U. S., 18 Wall. 516.

There is a great deal of testimony in this record, and there seems to have been an attempt to reserve an exception to every separable portion of it. Such mode of exception frequently defeats itself, and amounts to nothing more than a general objection and exception to an undistinguished mass, and will be overruled, if any separable portion of such mass be free from error. — Mayberry v. leeoh, 58 Ala. 339; Irvin v. The State, 50 Ala. 181; Wallis v. Rhea, 10 Ala. 451. In such attempt to secure a revision of all errors, by reserving an indiscriminate exception to every ruling, good, bad and indifferent alike, counsel presumes too much, when it is supposed the. court wfill analyze and dissect a voluminous record, to ascertain if the lower court may not have erred in some particular.

We find no error in the proof of the admissions alleged to have been made by Thomas Garrett, as to the person under whom he held possession ; nor in the testimony of the witness Oadow, except that we do not perceive the pertinency of the letter of B. F. Pope to Cadow, McKenzie & Co., bearing date May 20th, 1868 — “ Exhibit B.” “Exhibit D ” was admissible, as tending to prove the transmission of the deed to Pope & Son. With the like single exception, we find no error in the admission of Gaunt’s deposition. It falls entirely within the rule declared above, as to the admissibility of entries made by deceased witnesses. The trust-deed from Garrett to Cadow, McKenzie & Co., so far as.we can perceive, had no bearing whatever on any issue in this cause, and should not have been admitted. It was no part of the record.

The fifth and sixth charges asked by plaintiff and refused, should have been given. In all other respeets, we find no error in the charge of the court.

Reversed and remanded.