Jones v. Pelham , 84 Ala. 208 ( 1887 )

CLOPTON J.

As a general rule, a party’s own declarations, made in the absence of his adversary, cannot be admitted as evidence for him. An exception to the general rule is, that the declarations of one in possession of property, explana-, tory of the possession, may be received in evidence as constituting a part of the res gesta. His declarations, however, respecting the source of his title, and not explanatory of the possession, are inadmissible. The defence of the statue of limitations having been set up to the present suit, it was necessary for the defendants to show adverse possession under claim of right during the statutory period. Eor this purpose, the declarations of P(elham, while in possession of the property, that he owned it were admissible in a proper case, as explanatory of his possession, and as showing an adverse claim. But there is evidence tending to show, that he went into possession as the tenant of George, plaintiff’s intestate, or by his permission.

If such be the fact, his assertion of an independent hostile claim must be brought to the knowledge of George, by whose permission he entered into possession, in order to put the statue of limitations in operation. Wells v. Shearer 78 Ala. 142. His declaration of ownership, made in the absence of George, are not admissible evidence of such fact; and in order that they may be received as evidence of the assertion of an adverse claim for the purpose of putting the statue of limitations in operation against George, if Pelham went into possession by his permission, they should have been connected with proof offered or proposed to be offered, that such assertion was brought home to him. In the absence of such evidence, or of an assurance that such evidence would be subsequently introduced, they should not have been admitted for the purpose of the defence of the statue of limitations.

The testimony of Parsons, if admissible for the purpose of impeaching the witness Hayden, which we do not decide, could not be received for any other purpose. The. court, however, seems to have considered and treated his testimony of the statements of Hayden, as original evidence of the facts, which Parsons testified, Hayden had stated to him; for such facts constitute a part of the hypothesis of one of the charges, in which the jury were instructed they might look to them in connection with all the evidence in deciding whether Pelham had paid George for the lot.

In assessing lands for taxation, the statute in force at the time the lot in controversy was assessed, provided, that they should be described as follows: if an entire section, by the number of such section; if a sub-division of a section, by a designation of such sub-division; if less, or other than a sub-division, by the number of the lot, or other lands by which it is bounded; and in cases of lands surveyed, and laid out as a town, a plat of which is recorded in the office of the judge of probate; if the track be a whole lot or block, by the designation of the number thereof, and if it be a part of a lot or block, by its boundaries, or some other way by which it may be known. — Acts 18(58, 297. The purpose of the statute is, that the description in the assessment should be sufficiently definite and certain to inform the owner that his property is assessed for taxation, and the purchaser at the tax sale what property he is buying. In the assessment of the lot in controversy, it is described as “a house and lot on Battle street in the town of Talladega,” as the property of Pelham. The evidence shows that Pelham owned another house and lot on the same street, in which he resided, and adjoining the lot in question. The description affords no data by which to ascertain what house and lot on Battle street is intended. The assessment is void for uncertainty. Wilkinson v. Roper, 74 Ala. 140; Hannell v. Smith, 15 Ohio, 134; Blackwell on Tax Titles, 423; Burrows on Taxation, 203, In a conveyance between individuals where the purpose is to explain and give operation to tbe intention of tbe parties, certainty may be imparted to the deed by parol evidence, that the particular land was designated, and that the grantee was put into possession. But this rule does not apply to tax titles, with which the owner has nothing to do, and there being no intention to which operation can be given. The assessment is the foundation of all subsequent proceedings, and in order to impart certainty and validity to them, the description of the land must be sufficiently definite and certain, as not to require resort to extrinsic proof, unless the description in the assessment furnishes the means of more exact identification by the aid of such evidence. — Keane v. Cannovan, 21 Cal. 291; Driggers v. Cassaday, 71 Ala. 529. While actual occupancy of a part of a tract of land, into the possession of which a party has entered under claim and color of title, draws constructive possession of the entire tract described in the conveyance, if the color of title is inoperative as a conveyance, by reason of uncertainty in the description of the lands, the possession is limited to the part actually occupied.— L. & N. R. R. Co. v. Boykin, 76 Ala. 560. Neither the assessment nor the certificate of the Auditor, nor the tax deed, was admissible in evidence, either as operating a conveyance of the title, or as color of title.

Reversed and remanded.