41 So. 523 | Ala. | 1906
— There was no error in sustaining the objection to plaintiff’s question to witness Smith: “If Mrs. New did not subsequently file an amended answer denying the allegations of the bill?” She could not use subsequent acts or declarations to fortify her own testimony, and this was no explanation of an admission made in tbe original answer.
There was no" error in permitting the defendant to introduce the 'affidavit made by the witness Martha. New, as it was contradictory of her own testimony and a proper predicate was laid; and while the witness did not deny making the affidavit she denied knowledge of its contents, which gave the defendant the right to prove that she did know the contents when she made the affidavit, and the affidavit was, of course, properly admitted.
There was no error in the ruling of the trial court in permitting the introduction of the bill in chancery. The defendant admitted signing the answer admitting the averments of the bill, and the bill had to be admitted to prove what she admitted, and was relevant if it contradicted or impeached the witness. Nor was there any
There was no error in admitting in evidence the affidavit made by Walter Balcer. It was contradictory • of Ms testimony, lie admitted having made it, and it was competent to get his former statement before the jury by introducing the affidavit.
There was no error in xiermitting defendant to prove' valuable improvements on the land against the rent or damages, in the event the plaintiff recovered the land. A defendant has the right to prove valuable improvements erected by him in reduction or extinguishment of the rental damages, irrespective of the statutory suggestion of adverse possession, but would, of course, not be entitled to a judgment over in the absence of the statutory suggestion.—Kerr v. Nicholas, 88 Ala. 346, 6 South. 698; Gordon v. Tweedy, 74 Ala. 232, 49 Am. Rep. 813.
There was no error of which. the plaintiff can com- • plain as to the oral charge of the court.
The trial court properly refused charges 1 and 2, requested by the plaintiff. We are aware of the fact that a purchaser for value without notice, whether the consideration be adequate or not, would be protected under section 1005 of the code of 1896, as against unrecorded conveyances. But section 2156 of the code of 1896 may have some influence on the case at bar. If Wm, Young was a creditor of Martha New, and the conveyances made by Martha New to Charles New and by Charles New to George New were made to hinder and delay the creditors of Martha, they were void as against said creditors. There was evidence from which the jury may have inferred fraud, and that William Young was a creditor; and, if he was, he had the right to break down the plaintiff’s title and defeat a recovery, whether the plaintiff knew of the existence of his mortgage or not.—Howell v. Garden, 99 Ala. 100, 10 South. 640; Thames v. Rembert’s Adm’r, 63 Ala. 561. He may not have known of the mortgage, yet may have known that Young was a creditor of Martha.
The judgment of the circuit court is affirmed.
