Stapp v. Wilkinson , 80 Ala. 47 ( 1885 )

STONE, C. J.

We find, in the transcript before us, copies of many conveyances, none of which are so identified or described as to become parts of the bill of exceptions. — Parsons v. Woodward, 73 Ala. 340. Within this class are the following: Assignment from R. C. Long & Co. to Harkins, trustee; deed from O. S. Harkins, trustee, to Joseph B. Wilkinson ; deed from M. L. Stansel to Leona Stapp ; deed from Lewis M. Stone to same ; deed from Wooldridge .to same.

The defendant pleaded in abatement the non-joinder of his wife, Leona Stapp, as a defendant, and that the lands sued for belonged to her.- The court sustained a demurrer to this plea. In this there was no error. The plan tiff’s right of recovery depended on his proof of title in himself, and if he failed in that, he could not recover. If Mrs. Stapp had a title, that of itself disproved title in the plaintiff. If Stapp was in possession in virtue of his wife’s title, he could have had her made a defendant with him. In any event, the plea was only a denial that plaintiff had title, and the general issue raised that question. Or, the defendant claiming that his possession was only as trustee for his wife, there was no occasion to make her a party. The trusteeship connected his possession with her title, if title she had ; and proof of her title would have been a justification of his possession, and a complete defense to the action. — 2 Wait Ac. & Def. 96.

The evidences of paper title being entirely stricken from this record, the only evidence we can look to is that given by the witnesses orally. Joseph D. Stapp testified that the first deeds made by Wooldridge and Stansel to him had been destroyed. This-necessarily let in oral proof of their contents; and in making such proof there was no violation of any rule of evidence. It was the only method left of making such proof. And no question arises as to varying the terms of a written contract by parol proof. Nor is there anything in. the objection that witnesses were allowed to contradict the consideration clauses of deeds, which expressed on their face a valuable consideration. One of the main contentions in this case was over the tona fides of the conveyance from Stansel to Mrs. Stapp ; and the plaintiff in this suit, not claiming under that conveyance, so far as we can learn, was not precluded from contra-dieting the recited consideration. — -Shorter v. Sheppard, 33 Ala. 648; 1 Greenl. Ev. § 558 et seq.; Smith v. West, 64 Ala. 34.

The main issue in the court below, as shown by this record, was, whether Stansel’s original deed vested title in J. D. Stapp, which has never been devested by a conveyance from him, and whether Wooldridge’s deeds conveyed the entire property to said J. D. Stápp, in the lands embraced in his deeds, while Stapp’s reconveyance to him embraced only an undivided half interest. There was testimony tending to prove each of these propositions. ->If this testimony was believed— and the jury seems to have believed it — there was a time when J. D. Stapp held the legal-title to both the Stansel and Wooldridge lands, and there is no testimony that he was ever devested of the title, except as to the half interest in the Wooldridge lands which Stapp reconveyed to him. The destruction of the deeds could work no such result. — 1 Greenl. Ev. §§ 265, 568.

The charges given, and refusals to charge in reference to the proper interpretation of the mortgage, we can not consider, for the mortgage is not so made a part of the record that we can look to it. We are not able to perceive any error in any of the rulings of the Circuit Court, and the judgment is affirmed.