108 Ala. 282 | Ala. | 1895
The action is statutory ejectment to recover land. The plaintiff claims as one of the heirs of his deceased father, in whom the legal title was confessedly vested, at the time of his death, which occurred in 1872 or 1873, according to the testimony. The defendant purchased the land at a tax sale, in 1869, procuring only a certificate of purchase ; and he claims that he to'ok possession, at once, and has held it adversely ever since. Other witnesses testify that he has been in possession since 1873, while others testify that the widow of decedent occupied it until. 1874. The suit was insti-tutedon December 19th, 1893.- The testimony was also in conflict as to the plaintiff’s age, there being evidence tending to show he was only 22 years old, at the time of the institution of the suit, and other evidence tending to show lie was over 21 years of age, at that time. There was a verdict for the plaintiff, and the errors assigned
1. That portion of the oral charge, to which exception was reserved, simply asserts in substance what the statute (Code, § 2624) prescribes as ihe rule of limitation with reference to bringing suit by a person who was a minor when his right accrued. The objection that the charge was, in part, abstract, if conceded, would not operate to rt verse. ' We do not declare such charges when given to be erroneous unless it affirmatively appears they worked injury to the complaining party, although it is never an error to refuse such charges.
2. One of the controverted questions was whether defendant’s possession was hostile to, or in recognition of, plaintiff’s title as an heir of his deceased father. There was evidence tending to show that in August, 1892, he admitted the land belonged to the plaintiff. It is true, as contended by appellant, that if, in point of fact, a party has had adverse possession of land for a period sufficient to vest title, an admission after that period, that the title is in another, will not operate ¿.3 livest the title out of the party making the admission. — Lee v. Thompson, 99 Ala. 95. This principle in no wise conflicts with the other proposition, that an admission of the kind mentioned, whether made during or after the expiration of a period, sufficient to ripen an adverse possession into a perfect title, is admissible in evidence, and may be looked to by the jury in determining whether in reality the possession was actually adverse or subservient to the true title. We so expressly decided in Trufant v. White, 99 Ala. 526. The charge given at the instance of the plaintiff did no more than assert this proposition. We have often said that charges declaring that the jury may look to, or consider this or that piece of evidence, upon this or that issue, may properly be refused. At the same time, it is not necessarily error to give them. In this instance the court merely stated, in words, the necessary effect of allowing the admission of the defendant to go to the jury.
3. The conflict in the evidence, as to the character of
4. Section 546 of the Code of 1867, the only statute cited as authorizing the instruction asked by the defendant, to the effect that plaintiff would have only two years within which to sue for the land, after he became twenty-one years old, if it was sold for taxes, and the plaintiff was a minor, clearly has no application. That section relates to the period of redemption from tax sales. Besides, when the land in controversy was sold for taxes, it did not belong to the minor, but to his father.
5. The defendant moved for a new trial upon two grounds: (1.) That the ver lict was contrary to the law and the evid mee. (2.) Newly discovered evidence. Presumably in support of the second ground, numerous affidavits are found in the record, containing statements relevant to the issue fffact'itigated upon the trial. The court granted the motion, upon the payment of all costs within sixty days as a conditton precedent. The defendant declined to comply with the terms imposed and insists he was entitled to a new trial, unconditionally, as a matter of right. As above indicated, the testimony was in direct conflict upon the questions of fact, presenting a case peculiarly within the province of the jury to decide. Referring to the second ground, no reason or excuse whatever is shown why the persons who furnished affidavits were not examined as witnesses, and we find nothing to indicate that their evidence was newly discovered within the rule. Under tlu'se circumstances a refusal of the motion outright would not have been disturbed by us. The defendant, therefore, cannot be heard to complain that the court imposed the terms stated in granting his motion. — K. C. M. & B. R. R. Co. v. Phillips, 98 Ala. 159.
6. The verdict in favor of .the- plaintiff was forjan undivided one-third interest.in the.land ..sued .for,.and the judgnjpnt follows the verdict as to the*recovery. .It orders, hovyeyer.,-.that ta writ of possession issue for/'the land sued for:” Section 2882 of the Oode entitles á sue-
