Ponder v. Cheeves

Nov 15, 1893
Reporters:
Before:
Haralson
HARALSON, J.

1. The introduction of the complaint in the former suit in ejectment, if it had been offered by himself, was clearly inadmissible, on the objection raised to it, that it was irrelevant. The plaintiffs if they failed in that suit, were not barred thereby, to bring another for the samelands. — Code, § 2714; Exparte Shear, 92 Ala. 596. But this complaint was evidently offered in connection with the pleas in ‍​​‌‌​​​​‌‌​​‌‌​‌​​​‌‌‌​‌‌‌‌​‌​​​​​​‌​​‌​​‌​​​‌‌​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌‌​‌‍said suit. And, if these were admissible, for any purpose, the complaint, though not admissible by itself, was rendered admissible by the introduction of the pleas, inasmuch as the complaint was necessary to render the pleas intelligible and applicable. — 1 Brick. Dig., 887, § 1188. Whether offered separately or together, the objection of the plaintiffs is the same, going to their entire irrelevancy. The evidence introduced by defendants, tended to show, that for more than ten years before the institution of this suit, they and their ancestor, from whom both parties claim title, had held the lands adversely to the plaintiffs, claiming title ; but, they did not testify to any facts tending to show that the plaintiffs had any knowledge or notice of such hostile claim by them. The plaintiffs’ evidence tended to show ‍​​‌‌​​​​‌‌​​‌‌​‌​​​‌‌‌​‌‌‌‌​‌​​​​​​‌​​‌​​‌​​​‌‌​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌‌​‌‍a recognition by Herren of their superior title,during the whole time he was in possession, and that, after the purchase by.plaintiffs of these lands, at execution sale in 1867, Fierren became the tenant of the plaintiffs, by renting the lands.from them. If he afterwards disclaimed the plaintiffs’ title, it was necessary for him to show such a disclaimer, and the setting up of an actual, hostile possession, of which the true owner had notice.— Lucas v. Daniels, 34-Ala. 188.

*314The introduction of the complaint and the pleas in the former ejectment suit tended to show, and were admissible for the purpose of showing, a repudiation of plaintiffs’title, and the assertion of a possession hostile to them. For this purpose, the objection interposed, that the pleas were not marked filed, and were .simply- found in rhe file of paper ‍​​‌‌​​​​‌‌​​‌‌​‌​​​‌‌‌​‌‌‌‌​‌​​​​​​‌​​‌​​‌​​​‌‌​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌‌​‌‍in that cause was not good. The evidence of W. H. Smith established the fact, that before the trial of the cause, the original pleas had been lost, but that these were substituted for them, and the cause ’ was actually tried on these identical substituted pleas. This identification of them was as full as if the originals had been produced, and there was no error in the admission of this evidence, as tending to show notice to and knowledge of plaintiffs that defendants repudiated their title. If the evidence was competent for this purpose, and was admitted generally, the opposite party could not move its exclusion, but if he desired, should have requested instructions from the court, limiting its operation. — Scruggs v. Bibb, 33 Ala. 481; Park v. Wooten, 35 Ala. 242.

2. The certificate of bankruptcy of Herren introduced ‍​​‌‌​​​​‌‌​​‌‌​‌​​​‌‌‌​‌‌‌‌​‌​​​​​​‌​​‌​​‌​​​‌‌​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌‌​‌‍by defendants, against the objection of plaintiffs, was not relevant on any conceivable ground .r; It did not prove, or tend to prove, any issue in the case. It was entirely immaterial to the issues, to whether Herren had ever been discharged in bankruptcy or not. The plaintiffs had introduced the petition and schedule in bankruptcy, for the purpose of showing an admission by Herren, that he was then in possession of the lands as tenant of the plaintiffs’ancestor, Hambrick, and the evidence was competent for that .purpose. Its admission for that purpose, did not authorize the defendants to introduce the balance of the proceedings in bankruptcy.— Smith v. McGehee, 14 Ala. 408; Locke v. Winston, 10 Ala. 849. The effect of such illegal evidence is to confuse and mislead a jury, and ought not to be ‘sanctioned.

3. There was ‍​​‌‌​​​​‌‌​​‌‌​‌​​​‌‌‌​‌‌‌‌​‌​​​​​​‌​​‌​​‌​​​‌‌​​​‌‌‌‌​​‌​​​‌‌​​​​​​‌​‌​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌‌​‌‍no patent ambiguity in the lands described in the schedule, as suggested by counsel for defendants. The complaint describes-the lands as lying in Randolph county, Alabama, and the proof was, that the’ portion of the lands described in the schedule were the same lands as here sued for.

4. There was no error in refusing the general charge *315for plaintiffs. The evidence was conflicting, rendering such a charge improper.

Reversed and remanded.