Hancock v. Kelly , 81 Ala. 368 ( 1886 )

CLOPTON, J.

— The allotment and assignment to appellant of the land, to recover possession of which she brought the suit, as her dower interest in the real estate of her husband, would entitle her, though she may have been paid the purchase-money, to recover in a court of law, in the absence of a conveyance, unless her right is barred by the statute of limitations, or by prescription. The court having instructed the jury, that they could not look to the testimony of Seay as evidence that a deed to her dower interest had been made to Gooch, and there being no other evidence of a conveyance, the material issue, decisive of the controversy between the parties, was, whether there had been continuous adverse possession sufficient to bar a recovery. It thus became incumbent on defendants to show such possession in themselves and those from and under whom they claimed. Kelly v. Hancock, 75 Ala. 229. The posture of the case was understood by the court and parties, and to this issue the testimony was mainly directed. As affecting the question of adverse possession, and of the time necessary to perfect a bar, proof of the payment of the purchase-money, and of the character of the possession of John Hancock, was relevant and important. On both of these questions the testimony was in conflict. The admissibility of the evidence objected to, and the charges of the court upon the effect of portions of the evidence, should be considered in reference to the issue and the conflict.

The plaintiff having testified that she had not been paid all the purchase-money for her dower interest, and that she had never signed a conveyance, or other written instrument relating thereto, it would have been competent for the defendants to h ive contradicted and impeached her testimony, by proof that, on other occasions, she had admitted the execution of a conveyance. On the same principle, and for the same purpose, a witness, who was present, may testify to the fact of execution. Such evidence is not secondary in its character. The factum of a written instrument may be shown, without its production, or accounting for its absence, but not its contents or legal effect. Though the witness may call it a deed or conveyance, this is not proof that it is a deed. Such evidence merely means that the plaintiff signed a written instrument relating to her dower interest, but is not competent to show its nature or legal effect. The rights of the plaintiff were protected by the instruction as to the limitation of the effect and extent of the evidence. Shorter v. Sheppard, 33 Ala. 648.

When an original memorandum is produced, and a witness testifies that he made it in the usual course of business, and that at the time he made it he knew its contents to be true, this is equivalent to an affirmation of the truth of the contents, and lets in both the testimony of the witness, and the memorandum. — Acklen v. Hickman, 63 Ala. 494; Calloway v. Varner, 77 Ala. 541. If the witness is dead, entries of a transaction, made in his handwriting in the usual course of business, and which purport, or are shown to have been made at or about the time of its occurrence, are admissible evidence in any issue involving the transaction. -Elliott v. Dyche, 78 Ala. 150. The books, in which the original entries were made, were produced. Those in the book kept in the Huntsville office were made by Martin in the usual course of business, who testified they were correct, and those in the book kept at the New Orleans office are shown to have been entered in the usual course of business in the handwriting of a deceased clerk, and purport to have been made at the time the transactions occurred. The transactions involve the issue of the payment by Gooch of a bill of exchange drawn by plaintiff on Scruggs, Donegan & Go., by means of which Seay testified, a part of the purchase-money for the dower interest was raised, and an arrangement made with Gooch, the vendee, to provide for its payment. The entries are admissions of Scruggs, Donegan & Co., on whom the bill of exchange was drawn, of its payment, and how and by whom paid. Under the circumstances, they are admissible evidence against the plaintiff.

The declarations of John W. Hancock to Cabaniss, at the time of executing the mortgage, were admissible as part of the res gestee of conveying the title to the .land. — Heflin & Phillips v. Seay, 78 Ala. 180.

The court instructed the jury, at the request of the defendants, that “ any statements by the witnesses Amanda Wade, Harriet Wade, and William Johnston, that John W. Hancock recognized the plaintiff’s claim of dower are but expressions of opinion by the witnesses, and should be disregarded by the jury.” The persons named were examined on the part of the plaintiff as witnesses on the question of a dower claim and possession, and without motion to exclude the evidence. Had they testified in the terms of the charge, it may be conceded, that such statement would have been the expression of a conclusion or opinion. But such is not the testimony of the witnesses. They testified substantially, that plaintiff claimed the land in controversy as her dower, and her son claimed the reversion and the balance of the lands; that he did not claim the dower land, and always referred to it as his mother’s dower. Both the plaintiff and her son were residing on the land. Whether the son held in recognition of the plaintiff’s claim of ownership, or whether he was in possession, claiming the land in his own right, and the plaintiff was a member of his household, asserting no claim, was a controverted question of fact. Some of the statements are, in substance, the declarations of John Hancock explanatory of his possession ; and the statements, as to what each claimed, are not expressions of opinion, such as are inadmissible. They may be inferences, but necessarily involving the acts or declarations of the parties — the equivalent of a collective statement — and may be stated without specification of the acts or declarations, subject to a cross-examination as to their sufficiency. S. & N. Ala. R. R. Co. v. McLendon, 67 Ala. 266; Elliott v. Stocks, 67 Ala. 290 ; Street v. Sinclair, 71 Ala. 110.

It is insisted, however, that as the record shpws the witnesses did not use the expressions attributed to them, the charge is abstract, and should not work a reversal of the judgment unless it affirmatively appears that the jury were misled to the prejudice of appellant. Such is our ruling, when an abstract charge asserts a correct legal proposition. We do not so regard the charge. Construing it in reference to the evidence of the witnesses, the expression, “any statements (by them), that John W. Hancock recognized the plaintiff’s claim of dower,” is the conclusion of the draftsman incorporated in the instruction — a combination of the statements to which the charge refers. The legal effect is to instruct the jury, that the statements as made by the witnesses are expressions of the opinion, and should be disregarded. The instruction substantially withdrew, and the jury must have so understood, from their consideration, all the material evidence of the witnesses mentioned. The plaintiff had the right to have the credibility of the witnesses, and the sufficiency of the evidence passed on by the jury.

The twelfth charge, given at the request of defendants, is subject to criticism. On the former appeal, we held, that the court did not err in rejecting the trust-deed, on the ground that on its face it did not prove anything material to the issue, and no evidence was offered in connection with it, tending to show its materiality. The testimony, which connects it with the payment of the purchase money for the dower interest, shows its .materiality. Without this evidence, which connects also the bill of exchange, neither the trust-deed, nor the entries in the books, would be relevant, and while the omission to present the claim against Gooch’s estate is a circumstance to be considered by the jury, it is not conclusive of the payment of the purchase money. Payment of the purchase money, which in a case like the present, is necessary to perfect a bar within less than twenty years, is not a conclusive inference from the facts recited in the charge. This question should have been submitted on the entire evidence to the determination of the jury. On the former appeal, we also held, that the bill in the chancery suit shows that no lien existed against the dower estate ; that none was asserted, and that the decree must be referred to the claim set up in the bill. The register’s .deed also must be referred to the decree. John Hancock may have taken possession under the deed, and continued in posse-sion, leasing the land, collecting the rent, and managing it in his own name, yet possibly in recognition of the plaintiff’s right. Though the facts stated, in connection with the subsequent surrender of possession, and notice only of a claim to the grave-yard, may be strong circumstances, requiring satisfactory explanation, adverse claim and possession are not indisputable conclusions, without reference to the other evidence. There can be no question, that if the jury believed the hypothetical facts, and also the other evidence introduced by the defendants, they would have been authorized to find in their favor. But the obnoxious feature of the charge consists in the last clause, which instructs the jury, that merely the facts recited, if believed, authorize them to find a verdict in favor of the defendants, without submitting to their determination, whether, in fact, the evidence in behalf the defendants was corroborated, and. the value of the plaintiff’s impaired thereby — in effect withdrawing from their consideration all the other evidence bearing on the question of adverse possession.

We have examined tbe other charges, and find in them no reversible error. If tbe plaintiff alleges that tbe facts stated in tbe several charges were explained by other circumstances, an explanatory charge relating to them should be asked.

Reversed and remanded.