Swann v. Kidd
78 Ala. 173
Ala.
1884
Check Treatment
STONE, C. J.

The second charge given at the instance of defendant is in the following language: “If the jury believe, from the evidence, that defendant went into possession of the *175lands in controversy in 1867, or 1868, under a gift from James Kidd, and that he has been in the open, notorious, actual possession of said land continuously ever since he so went into possession thereof, claiming them as his own, and paying rents to no one, then they may look to such fact, in connection with all the other evidence in the case, in order to determine whether defendant agreed to pay rent to plaintiff.” The meaning of this charge is, that the long continued possession of the land, which defendant had held in his own asserted right, and free of rent, was itself a circumstance which the jury could consider, in determining whether or not Kidd promised Crandall to pay rent. As a fact, such possession could not tend to prove, either that Kidd promised, or that he did not promise, to pay rent. Proof of such possession, if the only issue had been whether or not the defendant promised to pay rent, would have been irrelevant and illegal. It would have been only an attempt to prove he had not made such promise, by showing it was not reasonable or likely he would have done so, under the circumstances. This he would not have been allowed to prove. — M. & W. P. R. R. Co. v. Edmonds, 41 Ala. 667, 677; Tanner v. L. & N. R. R. Co., 60 Ala. 621, 643. The proof not being legal evidence on such issue, it was error to instruct the jury to consider it in determining this disputed question. Charges should present legal propositions growing out of the testimony, and should avoid every appearance of being an argument.

The alleged transcript from the General Land Office was not sufficiently attached nor identified by the commissioner’s certificate, to let it in as evidence. — Herndon v. Givens, 16 Ala. 261; Susquehanna R. R. Co. v. Quick, 68 Penn. St. 189; Whar. Ev. § 824.

We need not consider the motion made to reject defendant’s pleas. The plea of not guilty was an admission of defendant’s possession, which is equivalent to the consent rule.

Reversed and remanded.

Appellant has leave to withdraw the original document, certified up for our inspection.