Worswick v. Hunt , 106 Ala. 559 ( 1894 )

COLEMAN, J.

— The appellant, Worswick, sued out an attachment against R. E. Hunt and M. E. Hunt for unpaid rent of dwelling, which was levied upon apiano, and household furniture, that had been in the dwelling, and used by the family.

The appellees, Lola Hunt and Mrs. Zella Flinn, daughters of the defendants in attachment, and who constituted a part of the family, made affidavit to the property and gave bond for the trial of the right of property. The claimants based their title to and ownership of the;properby, to a gift from their mother, M. E. Hunt. There was evidence on the part of the plaintiff tending to show that the property levied upon was subject to rent, and there was evidence tending to show a gift of the property to the claimants. The material assignments of error refer to instructions given at the request of the claimants.

The rule is, that a charge which assumes as true a controverted fact, material to the issue, is defective and erroneous, and should be refused. There was evidence in the case, which tended to show that Mrs.- Hunt had made no gift of the property to her daughters, and there was other evidence which, if believed, would operate an estoppel upon Mrs. Flinn, though there had been a gift to her, and the testimony of claimants’ witnesses in regard to the gift was not consistent, and a jury might have discredited it. The plaintiff Worswick testified that Mrs. Hunt claimed to be the owner of the property in the presence of her daughter Mrs. Flinn, and that Mrs. Flinn replied that the claim she had made to the property was in jest. The testimony of Elsberry tends to show, that the property was. claimed by Mrs. Hunt., and that it would be liable for the rent and was ample security. Mr. Flinn testifies that the piano was included in the gift to the two daughters made to them in June, just a few months previous to the rental contract for the dwelling. The facts here detailed were controverted by the claimants, but the issue was one for the jury.

Charges one, four, six, seven, and nine, given at the request of claimants, invaded the province of the jury, or assumes as true a controverted fact. The latter clause of the fifth charge was abstract and misleadiiig. There was no error in refusing the general charge requested by the plaintiff.

Reversed and remanded.