102 Ala. 563 | Ala. | 1893
On the 21st of January, 1892, Mariah M. Kuhl sold and conveyed by deed for a present expressed consideration, with covenants of warranty, a certain parcel of land to Elizabeth Long and Catherine Long. Subsequently the vendees paid the taxes which were assessed against the land for the year 1892. The plaintiffs Long began proceedings in the justice court, to recover the amount thus paid for taxes. The lien for taxes attaches to land on the first day of January, and this lien holds good against any subsequent alienation. Driggers v. Cassady, 71 Ala. 529; Swann & Billups v. The State, 77 Ala. 545. The summons issued by the justice of the peace commanded the defendant to appear and answer the complaint ‘ ‘of Elizabeth Long and Jane Long doing business as Long & Co.” The bond given on the appeal from the justice court to the circuit court was made payable “to Elizabeth Long and Catherine Long,” and from a judgment ‘‘in favor of Elizabeth Long and Catherine Long.” There was no error in allowing the plain tiffs to file their complaint in the circuit court, in their individual names. The suit was originally brought in their names as shown by the summons.
Nor was there any error in overruling the motion to dismiss the suit, because no complaint had been filed in the circuit court, before the parties announced themselves ready for trial. It was filed before the trial was entered upon.
The defendant objected to the introduction of the tax collector’s receipt, ‘‘because immaterial and irrelevant and because on its face, it was the bill of Elizabeth Long & Co.” There is no merit in this objection. These receipts are evidence tending to show payment and the amount paid ; and it was entirely competent to explain the receipts.
The next question presents one of more difficulty. The transaction for the sale of the land was carried on for several days by agents of the respective parties. The vendor, Mariah M. Kuhl, was present at no time. After the agreement for the sale a,nd purchase of the land was agreed upon by their respective agents, the vendor signed the deed for the conveyance of the land and delivered it
'Mobile, Ala., Jan. 25th, 1892.
This is to certify that I, Joseph Espalla, Jr., agént Mrs. Mariah M. Kuhl, will see that all taxes on the store and lot on the north side of Dauphin Street, 3d west of Claiborne street, up to the 1st day of January, 1892, are paid by the said Mariah M. Kuhl.
[Signed] Mariah M. Kuhl.
Per Joseph Espalla, Jr., Agent.’ ”
This writing was delivered to plaintiffs and by them accepted: A comparison of the receipt with the deed does not enable us to determine that both instruments refer to the same property. The proof is silent on this question. One bears date January 25th, 1892, the deed January 21st, 1892. We are unable to determine from the evidence whether both were delivered at the same time and when the purchase money was paid, or whether the one bearing the later date was subsequent also in its execution, and independent of the other. If the two were cotemporaneous and related the one to the other as different parts of the same transaction, construing them asoné, we think the parties themselves have settled the question of liability. If the parties expressly stipulated that the vendor was to pay all the taxes which were a lien upon the land up to January 1st, 1892, the principle that expressio vnius, est exchosio alterius would apply. Unless we give this effect to the writing, it could have no operation. On the other hand, if it was executed several days after the sale and purchase were completed, and did not enter into its consideration, without some sufficient consideration, it would not be binding, and the parties would stand upon their legal rights and liabilities fixed by the written terms of the contract of sale and purchase. We do not think evidence of any custom among real estate brokers admissible to enlarge or diminish or affect the legal rights and, liabilities of par
The burden rests upon appellant to show affirmatively error was committed by the trial court. The bill of exceptions states that "after the jury had retired, they returned to the court room and requested the court to give them further instructions whilst the defendant’s attorney was absent from the court, and the court gave additional instructions to the jury in his absence.” We are not willing to give our sanction to a practice of this character. Courts should not instruct juries in the absence of counsel. They are not only deprived of the opportunity to except to such charges, but have no opportunity to ask for explanatory charges, if deemed necessary. We would not be understood as holding, that counsel may absent themselves intentionally, and thus interfere with the administration and dispatch of business. Such is not our ruling. Here the jury had been charged and retired. Counsel for the defendant had the right to presume the instructions to the jury were completed, and that none others would be given without notice to him. If the court had caused counsel to be called, or otherwise exercised proper diligence to have him notified to1 attend, we would not say the court should unreasonably delay the jury or the termination of the cause, on account of the absence of counsel. All the evidence is set out in the bill of exceptions, and it shows, that upon the return of the jury into court for further instructions, the court proceeded to charge them orally, in the absence of counsel, and there is no evidence to show that any attempt was made to notify counsel. The question, however, is not presented in such a shape as to authorize this court to review it. If the appellant had moved the court to grant a new trial, based upon the action of the court in this respect, and his motion had been denied or overruled and an exception reserved, we would not hesitate to reverse the case, but no such ground is specified in the motion for a new trial. The facts appear in the bill of exceptions, and the bill of exceptions fails to show an exception to the giving of the charge, or to the action of the court.
Affirmed.
