51 So. 726 | Ala. | 1910
— This is a statutory action of ejectment by the appellees against the appellant. The plain
There was no error in admitting the tract book to show that the land had passed out of the United States government. This was immaterial, at any rate, as both parties claimed through Green Knight, and it was not necessary to trace the title beyond him. The deed from Green Knight to Katy Knight was signed by mark, and the acknowledgment was insufficient; ’but the testimony as to the handwriting of the witnesses to the deed was sufficient to admit the same. The credibility of the witness, as to his knowledge of the handwriting, on account of his age, was a matter for the consideration of the jury.
The court erred in excluding the testimony in regard to the mental condition of Green Knight at the time of the executed of the deed to Katy Knight. The deed was offered, without qualification, as a muniment of title, and not merely as color of title. Hence the mental condition of the grantor was important. Doubtless the idea of the judge was that the adverse possession of Katy Knight and Charles Gainer was conclusively proved, and for that reason the mental condition of the grantor was immaterial, as he subsequently gave the general charge in favor of the plaintiffs; but we cannot say that
We do not attach any importance to the proof offered that the defendant was in the actual possession of the land at the time of the execution of the deed to plaintiffs, as section 3839 of the Code of 1907. does not attempt to divest any title, but merely to affect the remedy, so that one who receives a deed while another is in adverse possession may bring suit in his own name, in place of in the name of his grantor.
The court erred in giving the general charge in favor of the plaintiffs.
The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.