47 So. 97 | Ala. | 1908
If the lot sued for was the property of Benjamin C. Steele at the time of his death, then the legal title descended to his only child, Anna, subject, however, to the widow’s right to have dower carved out of it; and on the death of Anna without a will her husband (the plaintiff here) took a life estate in the lot, subject to the same right of the widow. Such was the law at the time of Steele’s death in 1857, and continued to be the law unto the present. — Civ. Code 1896, §§ 1504, 2534, and the sections of the previous Codes there cited; Harlan v. State, 136 Ala. 150, 33 South. 858; Thompson v. Thompson, 107 Ala. 163, 166, 18 South. 247; Marshall v. Crow, 29 Ala. 280. This being true, on the death of the widow (Mrs. Cullen), the life estate vested in the husband would enable him to maintain ejectment against all persons not showing a better title.
The only question, then, to he determined on the motion of the defendant to exclude the plaintiff’s evidence, based on the ground that it did not make out a prima
The defense attempted by the defendant is that Mrs.' Cullen never acquired possession of the lot in virtue of any quarantine or dower right as the widow of Benjamin C. Steele, deceased, but that her possession was acquired and held independently of such right, and was an'adverse possession held for the length of time and in the manner to constitute in her title as an adverse holder.
The defendant offered as evidence, to show color of title, a deed from F. G-. Kimball to Mrs. Pauline Cullen; and the bill of exceptions recites that the deed includes •the property sued for. The deed purports to have been executed on the 3d day of May, 1867. The bill of excep
The oral charge of the court, excepted to, is merely a statement of the contentions of the plaintiff, and contains no reversible error.
We have been unable to find any fault in charges 1, 2, 3 and 4, given at the request of the plaintiff.
Charges 6 and 7, given for the plaintiff, are, to say the least of them, misleading, and, if requested on another trial, should be refused.
Charge 3, requested by the defendant, is faulty, in that it refers a question of law to the jury. The law fixes and defines the 'constituent elements that go to make up adverse possession, and a charge upon the subject should hypothesize these elements.
Charge 4, refused to the defendant, is misleading and •argumentative. Moreover, we doi not think there is any conflict in the evidence on the point that Steele was seised of the lot in controversy. The charge was properly refused.
Witness L. J. Cullen had testified, without objection or motion to exclude, that Mrs. Cullen claimed the property as her own from 1870 up to the time of her death in 1901; so that the defendant was not injured by the ruling of the court refusing to allow the witness to answer another question calling for a repetition of such evidence.
There is reversible error in the ruling of the court excluding that part of the showing made for the witness Henderson in this language: ‘ ‘I knew that Mrs. Cullen claimed the property as her' own, and she claimed it continuously to her death as her own.” — Eagle & Phoenix Co. v. Gibson, 62 Ala. 869; Hancock v. Kelly, 81 Ala. 368, 2 South. 281.
For the error pointed out, the judgment is reversed, and .the cause is remanded.
Reversed and remanded.