Savery v. Moore , 71 Ala. 236 ( 1881 )

SOMERVILLE, J.

¥e find no error in the record. The letter from J. N. Savery, the father of defendant, written to the plaintiff, Moore, was properly admitted in evidence. In connection with the other testimony in the cause, it tended to show that the plaintiff had some sort of interest in, or control over the lot in controversy, at sometime prior or up to its date, which was December 2, 1866. It was also competent to rebut the alleged continuity of adverse possession on the part of the defendant.

So likewise with the testimony of the witness Mitchell, which was clearly competent for the same purpose. The fact that he improperly designated the alleged owner of the lot as Alfred Moore went only to the identity of the party named, which was a question of fact for the jury. There was other evidence from which the'jury might justly infer a mere mistake of name or recollection in the matter. ■ The testimony of the witness Riley was also pertinent to establish this identity, alleging that there was but one family by the name of Moore resident in -the community about that time, which was the family of plaintiff’s father.

Mitchell’s assertion embodying the expression, “I thinlc the name of the party, to whom he [Savery] said the lot belonged, was Alfred Moore,” was not the averment of a mere opinion. It was manifestly intended as an averment of his best recollection, especially when taken in connection with the antecedent declaration disclaiming any positive recollection about the matter. It is often so used in common parlance.

The several charges given by the court were free from error. They merely asserted in effect the well settled principles, that the possession of the tenant is that of the landlord, and that every tenant is estopped from denying his landlord’s title, until be first yields possession of the rented premises; and that the statute of limitations would not commence to run, under the facts of this ease, until there was an adverse possession on the defendant’s part, asserted openly, notoriously and continuously. There was evidence from which the jury could have inferred the relation of landlord and tenant, and the charges were otherwise supported by the evidence.

The charge requested by the defendant may have asserted a correct proposition of law, but it was properly refused, because it ignored one important feature of the testimony in the cause, and was for this reason misleading. It excluded from the consideration of the jury, entirely, the testimony of the witness Mitchell and others, tending to show a tenancy on the part of Savery, and a recognition by him of a title in the plaintiff.

Affirmed.