House v. Camp

32 Ala. 541 | Ala. | 1858

WALKER, J.

The complaint describes the premises as “ a certain house and lot situated in the city of We-tumpka in Coosa county, in that part of said city known as ‘ Miller’s survey,’ being known as the east half of lot No. 21 in said Miller’s survey, on which is a house recently occupied by Mrs. B. M. Dixon.” It appears from this description that there is a portion of the city of Wetumpka, in Coosa county, lenown as Miller’s survey; and that there is a lot in that survey known as lot No. 21, which was occupied, not long before the commencement of the suit, by Mrs. B. M. Dixon. The points of description are sufficient to identify the land with sufficient certainty to inform the defendant what was claimed, and to enable the sheriff to deliver possession without danger of trespassing on other lauds. The sheriff would only have to find a known survey in the city of Wetumpka, and in Coosa county, anda lot of known and 'designated number in that survey, in order to ascertain the lands. This he could do without difficulty. If the survey is not “known,” and the lot is not “known” in the survey by its number, it might be brought forward as a defense to the suit. — Wright v. Lyle, 4 Ala. Rep. 112; Hilliard v. Ketchum, 6 Ala. 557.

[2.] The description in the judgment, aided as it is by a reference to the antecedent description in the record, is also sufficient.

[3.] Upon the authority of McRae v. Tilman, 6 Ala. 486, we hold the description of the complainant’s estate in the complaint tobe sufficient.

[4.] The deposition of Mrs. Dixon, as a deposition in the cause, was inadmissible, because it had been suppressed, if for no other reason. 'When offered to prove what a deceased witness had sworn, by analogy to the proof of what a deceased witness swore on a former trial, the defendant had a right to object to the evidence, upon the ground that the witness was incompetent from interest. The party against whom the testimony of a deceased witness on a former trial, or in a former investigation, is offered, is allowed to make every objection which could be4made, if the witness were in life, and personally offered as a witness for the first time. — 1 Greenleaf on Ev. § 163, and note 1; Carey v. Sprague & Craw, 12 Wendell, 41. When evidence is offered-of the testimony of a deceased witness, the objection for in competency may be made, even though the testimony may have been given in by the witness of the objecting party on the previous examination. — Carey v. Sprague & Craw, supra.

[5.] It appears from the complaint, as well as from the testimony of the witness herself, that the complainant was holding under her, and as her tenant; and it appears that the defendant was claiming the possession adversely to the witness. The witness would necessarily be prejudiced by the defendant’s recovery in the case, because her right of possession in that event would be adjudged against a tenant holding under her and for her, and she would thus lose the possession of the land which she held through her tenant. — 1 Greenleaf on Ev. § 392; Jackson v. Stackhouse, 1 Cowen, 122; Doe v. Clark, 3 Bingham’s N. C. 429; Smith v. Chambers, 4 Esp. 164.

As this suit was commenced before the adoption of the Code, the competency of the witness does not depend upon the law found in it-

The court erred in. not sustaining the objection on the ground of interest to the testimony of Mrs. Dixon.

[6.] There was no error in the refusal to give the first charge asked. If the complainant was in the possession of the premises, under an agreement to keep possession of them, together with some articles of household furniture, for Mrs. Dixon until demanded, he had such an interest as would enable him to bring the suit. All that is necessary to the maintenance of the action is, that there should be a holding by some tenure, which by law entitled the party to the possession, which is the only matter to be inquired of. — McRae v. Tilman, 6 Ala. R. 486. A mere tenant at will may maintain the- action. — McDonald v. Gayle, Minor, 98.

[7.] We think the second charge asked was also properly refused. The facts presented in the charge do not negative Camp’s possession. Neither the fact that Camp himself had wagons and straw-cutters in the house, nor the fact that Kennedy had wagons, carry-alls, paint-pots, and brushes in the house,' nor the fact that White and his family were living there, nor all of those facts together, would authorize the court to announce, as a legal conclusion, that Camp was not in possession. Kennedy may have put his articles in the house by the permission of Camp, without taking, exercising or claiming any control over the house; and so White and his family may have been in the house by the permission of Camp, with the understanding that Camp still retained the control and possession of the premises, while they had only such occupancy as a boarder has in a hotel, where he may temporarily sojourn. If such was the case with regard to the occupancy of Kennedy, and of White and his family, they would not destroy the possession of Camp, or deprive it of the character requisite to the maintenance of the suit.

For the same reason, upon which we approve the refusal of the court to give the second charge asked, we decide that there was no error in the qualification by the court of the third charge asked.

The judgment of the court below is reversed, and the cause remanded.