44 So. 417 | Ala. | 1907
This is a statutory action of ejectment.. From a judgment in the circuit court in favor of the defendants, the plaintiff prosecutes this appeal.
No brief has been filed for the appellees, and if some of the 29 grounds of error assigned have been discussed in the brief filed by counsel for the appellant, yet not a single authority is cited in the brief on any point of law involved. So we are left to search for authorities, if needed, without the aid of counsel. We shall make the best effort we can to treat the case properly; but, if some of the points should be overlooked, counsel will have only themselves to thank for the omission.
The record fails to show that a deed by Anna J. Dowl-ing and H. H. Dowling to appellee, Nettie F. Hairston, was offered in evidence; hence the first ground of error has no foundation in fact.
The second ground in the assignment of errors will not be considered, for the reason that it is not insisted upon in appellant’s brief. What is said in the brief in respect to this assignment is a mere repetition of the objection that was made to the deed when it was offered.— Mitchell v. Gambill, 140 Ala. 545, 37 South. 402.
Two mortgages executed by plaintiff and one Hughs Massey to Alto Y. Lee as trustee were necessary links in defendant’s chain of title.' The originals of these mortgages were not produced, and against the plaintiff’s objection that the proper predicate for the introduction of secondary evidence was not made, the court allowed copies (not certified copies) of the mortgages to be introduced as evidence. The evidence on which the cop;es were admitted was as follows: Alto Y. Lee testified that the plaintiff and Hughs Massey executed to him two mortgages, one in December, 1895, and the other in January, 1896; that he did not know where the mortgages were; that, his last recollection of them was that they
The page of the ledger of Shelly Dowling & Co. showing the account of plaintiff and Hughs Massey ivas, in connection with the evidence that preceded the offer of it in evidence, properly admitted against the general objection interposed to it.
Charges 1, 3, and 4, given at the request of the defendants, are bad, in that each submits a question of law for the determination of the jury. Whether or not the property was sold in accordance Avith the power contained in the mortgages, and whether or not the machinery was conveyed by the mortgages, Avere questions of laAV, even if they depended for solution partly on parol evidence, facts which would constitute a sale in accordance with the poAver and facts which would constitute a conveyance by the mortgage should have been hypothesized, and the charges should have referred their existence vel non to the jury, and not the naked question of law, without any guide. In giving the charges the court committed reversible error.
The charges requested by the plaintiff, the bill of exceptions shows, were requested in bulk; and to put the court in error for refusing them, all of them must be good. It is clear that charge 4 of the series is had, in . that it exacts too high a degree of proof. — Verberg's Case, 1-37 Ala. 73, 34 South. 848, 97 Am. St. Rep. 17; Yeats’ Case, 142 Ala. 58, 38 South. 760; Southern Rail
We have considered all the assignments of error that have been insisted upon. For the errors pointed out, the judgment of the circuit court will be reversed, and the cause remanded.
Reversed and remanded.