Stephens v. Barnwell

McCLELLAN, J. Ejectment by appellant. The plaintiff asserted his title to be derived through a deed executed in 1892 from Mrs. Cleveland of whose possession of the property there was a tendency of the testimony to show, as well as that under his deed the plaintiff went into possession of the premises and made improvements thereon. The defense Avas adverse possession, Avhich, of course, rendered, under one phase of the case, controversial the character and extent of the possession of the defendants. The plaintiff’s testimony tended lo show that after the execution of the plaintiff’s deed he and Judge Austill visited the premises with a view to ascertaining the state of the possession, and that Louisa and William Barnwell, defendants, disclaimed any hostile claim of title or possession to that of the plaintiff; William executing an instrument stating that he held the land as a tenant of the plaintiff. The plaintiff excepted to the action of the court in limiting this [127] testimony to the above-named defendants, and excluding it as against the remaining defendants, upon the ground that the disclaiming of Louisa and William, in the presence of the other defendants, operated to require their avowal of their claim, if any, to the land, and that their silence was evidence against their claim at a later time. The rule for the admission of such evidence is thus stated in Peck v. Ryan, 110 Ala. 341, 17 South. 734: “That the statement must be heard and understood by the party to be affected by it, that the truth of the facts embraced in it must be within his knowledge, and that the statement must he made under such circumstances, and by such persons as naturally call for a reply.” The authorities to support the announcement are there cited. See Wetmore on Evidence, §§ 1071, 1072. Judge Austill testified that, upon the occasion referred to “all of the family came out to the fence” near which the transaction and statements limited by the court took place. It appears from the record that the defendants, other than Louisa and William, resided with them on the premises. In view of these circumstances, we think the court erred to the prejudice of plaintiff in limiting the testimony as it did. The character and extent of the possession of all the defendants was a material inquiry in the premises; and it was admissible against all defendants, as indicative of the character and extent of their possession provided, of course, the conditions set forth in the quoted rule, rendering silence an evidential circumstance, were found by the jury to have existed at the time in question. However, it is appropriate to suggest that such evidence should be cautiously credited. — Campbell v. State, 55 Ala. 80; Fuller v. Dean, 31 Ala. 654; Matthews v. State, 55 Ala. 187, 28 Am. Rep. 698. If the defendants were found to hear the relation of tenancy in common to the [128] premises iu dispute — a relation predicable, either upon an adverse possession which had invested Albert Barn-well with title to the premises, or upon their own adverse possession for the necessary period — no act or word of any of said tenants could prejudice the rights of his or her fellows. — Freeman on Co-Tenancy, §§ 169, 170, 172. And if the jury should find that the possession of Albert had ripened into title before the execution of the plaintiff’s conveyance in 1892, the admission of any or all of the defendants, his widow and heirs, of a superior right or title of plaintiff, such, of course could not operate to divest them of the legal title, but if they held possession in recognition of plaintiff’s right or title for the requisite period‘to complete the bah of the statute, the plaintiff’s title would be established, notwithstanding the prior title of Albert Barnwell. We need not discuss the other error assigned, since on the trial to he had the identification of the lands sued for will be shown by proper testimony. It was proven by the witness Nicoll that the lands described in the complaint embraced that described in the deed. For the error indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. Tyson, C. J., and Anderson and Denson, JJ. concur.