Hardy v. Randall

McCLELLAN, J. Common-law ejectment. The bill of exceptions contains this. recital, which is the basis of an assignment of error: “The plaintiff rested his case. In opening his argument to the jury counsel for plaintiff handed about eight drawings, a copy of which is hereto attached marked Exhibit 5/ to the jury, without saying anything to the court or addressing counsel about it. When objection was made by adversary counsel, plaintiff’s counsel stated to the court that it was a drawing based on the evidence of the case with which he desired to illustrate his argument, in the absence of a blackboard for that purpose. Counsel stated- that it was not, nor did it purport to be a map-; but that it was merely an objective illustration drawn from and based on the evidence in the case, which he desired to use in connection with his argument to the jury, in order to show the true location of the various houses and other things shown on the map introduced by defendant over the plaintiff’s objection. Counsel for the defendant objected to the plaintiff using these drawings before the jury on the ground that it had not been identified as being a correct map of the land and appurtenances thereon. The court sustained the objection, and ordered that the jury return said drawings to plaintiff’s counsel, and to this ruling of the court the plaintiff then and there reserved an exception.” [521] It is a matter of discretion of the trial court whether counsel will be permitted on objection to explain the facts in controversy by reference to a map or drawing that has not been proven to be correct or that has not been admitted in evidence; for abuse only will it be revised. — 5 Encl. L. & P. pp. 310-356; Rand v. Syms, 162 Mass. 163, 38 N. E. 196; Zube v. Weber, 67 Mich. 52, 34 N. W. 264; Hill v. Water Com’rs, 77 Hun, 491, 28 N. Y. Supp. 805. No abuse of this discretion is shown in the instance under review. Charge 1, refused to plaintiff, would have cast the result of the trial alone upon the failure of the defendant to carry the burden of his defense of adverse possession. Taking a view of the utmost (and perhaps on the evidence unjustifiable) favor to the plaintiff, there were other issues of fact the affirmative of which was on the plaintiff. The charge was hence well refused because its effect was to improperly contract the issues to the one only upon which it is predicated. Charge 2, refused to plaintiff, would have, if given, tended to mislead the jury. Whether the burden of proof was upon the defendant to establish adverse possession depended upon the condition that plaintiff had made out a prima, facie right to recover — a condition, upon this record, to be determined by the jury. It is insisted in brief for appellant that the question propounded to B. T. Randall, and the answer thereto, set out in the fifth and sixth assignments of error, should have been disallowed and excluded on his objection and motion, because it invoked testimony affected with incompetency by Code, § 4007. The grounds of objection to the question, and those of the motion to exclude the answer, were general — not particularizing the ground argued in brief. In such cases the ruling of the court, [522] the matter not being palpably inadmissible, will not be reviewed. — 6 May. Dig. pp. 371, 372. The motion to exclude the statement of the witness L. H. Randall, viz., “I know that Sessions cultivated some of this 40,” should have been sustained. Immediately after making the quoted statement the witness added, “But I was too young to remember that now.” This explanation put the affirmative statement in the category of hearsay evidence, and the plaintiff’s objection took the point. It was error to overrule the motion to exclude. The assignments numbered 8 tó 15, inclusive, are argued together in brief for appellant. They rest upon the action of the court in allowing the witnesses, over appellant’s objections, to testify to- the absence of claim of ' ownership of the land in controversy. The sole argument in brief for appellant is that such testimony improperly permitted the recital of a postentertained and unexpressed mental attitude. It was ruled in Dorlan v. Westervitch, 140 Ala. 283, 37 South. 382, 103 Am. St. Rep. 35, in opposition to the argument now presented, that a claim to land, in relation to possession thereof, was a fact, and not a statement of mental attitude or undisclosed intention. On the cross, appellant propounded this question to the witness Bailey: “Was W. H. Prestridge in possession of the land described in that deed?” — referring to ■ deed of Hale to Prestridge. It was disallowed on objection of appellee. There was no error in this ruling. The only insistence to error in brief for appellant is that this ruling improperly limited the scope of appellant’s right of cross-examination. The question was illegal in itself, and therefore not proper on examination at any stage, invited by preceding illegal examination in that particular. That was not the case here. The question could only invite in one phase the opinion of the witness, [523] whether Prestridge’s possession was of the land described in the Hale deed. The deed was the best evidence of what it described, and of what land Prestridge was in the possession was a matter in issue and the subject of necessarily separable proof. Aside- from this, the witness had not been shown to know what lands were described in the Hale deed. The question propounded on the cross to the witness Z. R. Bailey, and set out in the seventeenth assignment, should not have been disallowed. While somewhat lengthy, due to its recitation of what counsel thought the witness had previously testified in the particular indicated by the question, there was nothing confusing in the question, nor was it unintelligble in any degree. It was obviously within the scope of a proper cross-examination. The court erred in sustaining defendant’s objection thereto. The deeds referred to in the assignments numbered 18 to 21, inclusive, described lands, on either side, north and south, of the railway, in that section. There was testimony tending to show possession for a great period under these instruments. They were offered and received in evidence as color of title only. There was no error in this. It is true that a deed the description in which is void for indefiniteness and uncertainty cannot operate as color of title. — L. & N. R. R. Co. v. Boykin, 76 Ala. 460; Black v. T. C. I. & R. R. Co., 93 Ala. 109, 9 South. 537; 2 Ency. L. & P. pp. 523-525. On the other hand, the instrument may serve as color of title notwithstanding it does not so describe the land claimed as that from it alone the land may be identified. The doctrine imported in the maxim, “Certum est quod certum reddi potest,” is applicable to such instruments as it is to ordinary conveyances otherwise effectually executed. — Black v. T. C. I. & R. R. Co., supra; Dorlan [524] v. Westervitch, 140 Ala. 283, 295, 37 South. 382, 103 Am. St. Rep. 35; 2 Enc. L. & P. p. 525. For the two errors indicated, the judgment is reversed and the cause is remanded. No other errors appear. Reversed and remanded. Simpson, Mayfield, and Sayre, JJ., concur.