75 Ala. 285 | Ala. | 1883
It is assigned as error that the circuit court sustained plaintiffs’ demurrer to the fifth plea. The record shows the circuit court sustained the tenth ground assigned in demurrer. Only nine grounds are shown to have been assigned. We are not able to know what is covered by the assignment, and can not consider it.
There was no error in excluding the testimony of Perkersou. It related alone to acts of Smith, done long after the alleged trade with Finney, and in the absence of both Finney and his transferees. To allow such testimony to explain or qualify a previous contract between Smith and Finney, would be allowing Smith to make evidence for himself. — 1 Brick. Dig. 834, §§ 423-4.
Many rulings were made, and many others invoked, looking to the avoidance of the alleged purchase of Smith from Finney, on the plea of statute of frauds. — Code of 1876, § 2121, subd. 5. The present suit is against Smith, founded on a writing signed by Smith, and the object of the suit is to charge him, Smith. No other person is sought by this suit to be charged. Now, the consideration of the note or bond is expressly set out in the writing itself. Its language is, “for all his (Kinney’s) title or claim to property bought of W. R. Larkin and J. J. Gentle, and known as the Gentle property.” This description would be sufficient in a complaint in ejectment, for it must be supposed that from this description the identity of the lots can be ascertained. — 3 Washb. on Real Prop. (4th Ed.) 398-9; Phillips v. Adams, 70 Ala. 373 ; Cooper v. Hornsby, 71 Ala. 62; Horton v. Wollner, Ib. 452. This case is thus narrowed down to the consideration of a few charges, given and refused.
Charges 6 and 8 given at the instance of plaintiffs, are correct expositions of the law .-Tobin v. Bell, 61 Ala. 125. Charge 9, asked by defendant and refused, is faulty in two respects. It refers to the jury the construction of a written instrument, and is in other respects liable to mislead the jury. — 1 Brick. Dig. 339, §§ 59, 60, 61 ; lb. 337, § 27. There is nothing in the other exceptions.
Affirmed.
