Milton v. Haden

35 Ala. 230 | Ala. | 1859

R. "W. WALKER, J.

1. In the ease between these parties decided at the January term, 1858, (Milton v. Ha-den, 32 Ala. 30,) it was held by this court, that the continuous use of a ferry franchise for more than twenty years raises a presumption that it had a legal origin. If the lessors, and those under whom they held, had enjoyed the uninterrupted use of the franchise for more than twenty years, and there was no countervailing proof to disturb the presumption of judicial license, or legislative grant, thereby created, it is obvious that the court of county commissioners had no power to grant a license for a ferry at the same point to Nance. Upon the facts supposed, the license to Nance would be void ; and the fact that Nance, under color of this license, kept Milton out of the ferry under his lease, for three months, would constitute no defense to this suit. Such an interference with Milton’s enjoyment of the franchise was not an eviction by title paramount, but a dispossession, without judicial proceeding, under an invalid and worthless claim.

2. It does uot appear that the lease of the ferry was made by Mrs. Haden in her capacity as administratrix. She is, it is true, styled “administratrix,” both in the lease and in the note sued on; but that is mere ‘ descriptio personen.’ She is found in possession of the ferry, claming under her husband. The defendant recognized her title, by becoming her tenant, and he will not be heard to dispute it. The case, then, is simply a suit by an'administrator and administratrix, in their representative characters, upon a note made payable to the administratrix individually ; it being alleged in the complaint, that the note £ is now the property of the plaintiffs as administrator and administratrix,’ and assets of the estate. This is a sufficient allegation that they hold the notes as assets by transfer. — Nesbitt v. Pearson’s Adm’rs, 33 Ala. 668. Under the rule of practice adopted at the January term, 1853, (see 31 Ala. p. 5,) the plaintiffs were not required to prove that the note was assets of the estate, unless that fact was put in issue by plea, verified by affidavit.

3. The only remaining point is as to the admissibility of the declarations made by Nance when he presented his petition for a license to the court of county commissioners. It follows from what has already been said, that the evidence which the defendant had introduced, showing that Nance had obtained a license for three months for a ferry at the same point, was irrelevant. The defendant, having chosen to offer irrelevant testimony, cannot complain that the plaintiff was permitted to rebut it, by showing under what pretense Nance procured his license. Nelson v. Iverson, 24 Ala. 9. This evidence could not prejudice the defendant, and in any aspect in which it may be viewed, its admission was error without injury.

Judgment affirmed.