Pearson v. Adams

129 Ala. 157 | Ala. | 1900

MoCLELLAN, C. J.

It was competent for the defendants-, by way of -making certain the description of subject-matter embraced in the deed executed by Cray-ton Adams to Eugenia B. Adams on June 6, 1885, the description therein being this: “One lot on Oreen street in said Alexander City about 23 feet front and runs back thirty-six feet and adjoins the drug -store of Ciayton Adams/’ to introduce “parol evidence tending to show that the deed did cover and convey the land sued for in this suit and that there was never but one drug store on Green street, known as Crayton Adams’ drug store and it was on the east side of said street, and that there was never any other lot on Green street fronting said street and adjoining Crayton Adams’ drugstore and running back thirty-six feet and owned by Crayton Adams than the one mentioned in the deed.’” Clements v. Pearce, 63 Ala. 284; Humes v. Bernstein, 72 Ala. 546; Robinson v. Allison, 109 Ala. 409.

The case turned in the trial court upon the question of adverse possession for ten years. Plaintiff' set up-title by muniments. Defendants relied upon their alleged adverse possession for the period necessary to bar plaintiff’s -action and destroy her title. And plaintiff replied that she and not defendants had all along been in possession. The lot adjoined two storehouses conveyed to plaintiff -by the -same instrument tinder which she claims title to the lot. Mrs. Adams, -the beneficial defendant, testifies that she took possession of the entire lot and that it was the lot between the drug store and the stores of plaintiff referred to above. “The evidence showed without controversy” (to quote from the bill of exceptions) “that II. W. Pearson, the husband of the 'plaintiff, as plaintiff’s agent, went into possession of the two stores mentioned in her deed offered in evidence, and that plaintiff never had the actual possession except in that way, and that her husband, H. W. Pearson, was her agent in the management of said property, and the evidence further showed that if the plaintiff ever had possession of any of the • lot sued for, it was held by and through her 'said husband as her agent, and that her said husband had full power to act for and represent her in regard to said property and that said H. W. Pearson was the agent of the plaintiff in bringing and prosecuting this suit.” On this state of the case, the trial court properly received the testimony of the witness Crew to the effect that several months before the institution of this suit he was with H. W. Pearson in plaintiff’s storehouse ad- - joining the lot sued for, said Pearson occupying the stores at the time, and was talking with said Pearson about buying said store 'property, and that 'said Pearson then told him that plaintiff’s said storehouses just about covered the lot, and that other parties owned the lot between said stores and the Crayton Adams drug store. This declaration of H. W. Pearson was competent in view of plaintiff’s claim advanced in the suit that she had actual possession of this lot through or by her husband as her agent under claim of right of title, and as not tending to impeach her title directly, but as going to rebut, the case' presented by her as to such possession. Having on the case made possession only by her husband as her agent if at all, the declaration of the agent disclaiming possession and right of possession was evidence against her on the inquiry as to possession.—Nashville, Chattanooga & St. Louis R’y Co. v. Hammond 104 Ala. 191; Belmont Coal & Railroad Co. v. Smith, 74 Ala. 206. And the testimony of the witness Sam Adams to the effect that H. W. Pear-sou offered to buy the lot sued for stands upon, the same footing.

These facts going as they did to show that plaintiff was not in possession of the lot and did not claim it at the time of H. W. Pearson’s conversations with Crew and Adams, respectively, could not have been weakened in their effect upon the case by evidence of the reasons why she was not then in possession and did not then claim the lot. The competent fact was the want of possession and claim by her and not the reasons for the existence of that fact; and the court did not err in excluding the proposed testimony of IT. TV. Pearson, admitting the absence of such possession and claim, and to the effect that plaintiff’s deed was not then at hand and that he had been advised that she did not own this lot.

The plaintiff made her requests for instructions in the court below in volleys, so to speak: She asked two or more charges in several instances at the same time, on the same piece of paper, conjunctively and as a whole; and her request was refused by the court as an entirety. Thus' as to charges numbered 1, 2 and 8 the bill of exceptions states: “These three charges were written on one and the same sheet of paper and Avere numbered AA'itli a space left betAveen them, but Avere not torn apart or separated, the -court refused the said charges in this manner by Avriting, once on margin of the sheet containing them the word ‘refused’ and signed N. D. Denson, Judge.” And so it was Avith charges numbered 4, 5, 6. 7 and 8. and AAith charges 9, 10 and 11, and so also Avith charges 12 and 13, and again with those numbered 14, 15' and 16, and with charges 17 ’and 18. The -charges being thus asked and refused -collectively, every one in each of the separate aggregations must be sound, else it cannot be affirmed that the -court erred in refusing any of them.—Teague, Barnett & Co. v. Lindsey et al., 106 Ala. 266.

In the first lot charge 1 is abstract: The evidence avus without, conflict to the effect that S. P. Adams sold the lot to Crayton Adams. MoreoA^er, one Avho miters as a trespasser may have such adverse possession as may he tacked to a succeeding possession, in privity and ripen into title. Bo that charge 3 of this lot is also had.

The second lot contains the affirmative charge for plaintiff, and of course was properly refused.

Charge 13 would have authorized a recovery by plaintiff notwithstanding the jury found that defendants and those under whom they claim had had adverse possession for ten years before suit was brought. The same may he said of charge 15 in the succeeding instalment of instructions.

Charge 17 in the last lot of charges requested by plaintiff is bad for singling out and giving undue prominence to a particular part of the evidence.

("barges 19 and 20 are the only ones which were requested by plaintiff and ruled upon separately. The latter is an affirmative charge, and -was property infused because there was evidence tending to show adverse possession in defendants for ten years before suit brought. Charge 19 is abstract. There was no evidence' of an abandonment of possession by defendants: whatever possession they had was continuous to time of suit brought.

Whether each of the charges 9, TO and 11 requested together by plaintiff asserts a sound proposition of law we need not decide since the assignments of error 'based on their refusal are not supported by argument of appellant’s counsel. Of these charges it is said in the brief of appellant only: “It is insisted that charges 9, 10 and 11 should have been given.” This is not sufficient to save appellant from the imputation of having waived the assignments. And the same is true of many of the other charges and sets of charges refused to plaintiff considered above.—Ward v. Hood, 124 Ala. 570; Williams v. Spraggins, Buck & Co., 102 Ala. 424, 431; Louisville & Nashville Railroad Co. v. Morgan, 114 Ala. 449; Henry v. Hall, 106 Ala. 84, 100.

The charges given at. defendant’s instance are manifestly unobjectionable.

Affirmed.