Ballard v. Bank of Roanoke , 187 Ala. 335 ( 1914 )

McCLELLAN, j.

Statutory ejectment by appellee against appellant. Plaintiff would trace its title through the conveyance from defendant, Joshua Ballard, to E. E. Ballard, executed August 24, 1896, and a mortgage for $1,000, still unsatisfied, executed by E. E. Ballard and J. M. Ballard January 26, 1900, to the Bank of Roanoke. The defense asserted was adverse possession of ten years under color of title afforded by an agreement or contract between Joshua and E. E. Ballard. And it may be here stated that the evidence made the solution of the issue raised by the defense indicated a question for the jury.

The land in suit is thus described in the deed of August 26, 1896, “S. W. S. E. sec. 29 & N. % N. E. sec. 32,” and, with a number of similar quarter calls intervening, these letters and figures occur in the deed, “T. 19, R. 13.” Common knowledge and experience in this state renders absolutely certain the meaning of the permissible abbreviations quoted from the deed. In land parlance here the calls describe the southwest quarter of the southeast quarter of ‘section 29and the north half of the northeast quwrter of section 32. The frame of the descriptive part of the deed leaves no doubt that the abbreviated reference to township 19, range IS, was intended and did, in fact, refer to the sections before mentioned (29 and 32) in that township and range.

The certified transcript oí the deed of August 24, 1896, was properly received in evidence.—Code, § 3374 (amended Acts Sp. Sess. 1909, p. 14). See Freeman v. Blount, 172 Ala. 655, 55 South. 293. We cannot affirm that the trial court was in error in holding the proof of the absence of plaintiff’s (a corporation) possession or control of the deed in question sufficient to meet the condition of the statute. There was no error in admitting this transcript in evidence.

The court properly received in evidence the certified copy of the mortgage executed by E. E. Ballard and J. M. Ballard to the Bank of Roanoke. The court, in so doing, but gave effect to the written agreement of the counsel who then represented the defendant. This agreement clearly exempted plaintiff from the obligation or necessity to prove due execution of the mortgage.

The question whether the court erred in allowing the plaintiff to show that defendant (who testified as a witness in his own behalf) had been convicted of adultery, for the affimatively limited purpose of affecting the credibility of the witness, is not presented by the bill of exceptions. The court made a conditional ruling when the question indicated was propounded to the witness; the condition being that it was admitted subject to subsequent motion to exclude. There was exception to this action of the court. Subsequently the court allowed the evidence for the limited purpose indicated, and there was no exception reserved. The exception that was reserved, as .stated, was rendered abortive by the condition attached to the ruling and by the limitation later made by the court.

The practice is better always to rule positively one way or the other, and, if the court desires to consider the matter of objection further, to suspend the introduction of the evidence until the court has reached a conclusion.

Whether at the time the mortgage to the bank was executed and delivered Joshua Ballard had abandoned his wife, E. E. Ballard, so as to avert the legal consequences of his failure to assent to his wife’s execution of the' mortgage (Code, § 4494), was a disputed matter of fact between the parties. On the theory that such evidence'had a tendency to establish abandonment of the wife by the husband, plaintiff was allowed to- offer evidence to the effect that the persons did not occupy a common apartment, but that they slept apart in the same house. This was error.—Fritz v. Fritz., 138 Ill. 436, 28 N. E. 1058, 14 L. R. A. 685, 32 Am. St. Rep. 156.

The charge given at the instance of the plaintiff was properly given. It is manifest that, if the defendant’s asserted possession was “in subordination” to the mortgagee’s (bank) rights, it could not have been adverse so as to defeat the title the mortgage purported to convey. There was a tendency of a phase of the evidence upon which the hypothesis of this charge could be predicated.

A fault of charge Al, refused to defendant, is that it did not hypothesize an adverse possession by defendant at the time the mortgage was executed. It was well refused.

There was no error in refusing the other special charges requested for defendant.

For the error indicated, the judgment is reversed, and the cause is remanded.

Eeversed and remanded.

Anderson, C. J., and Sayre and de Graffenried, JJ., concur.