Singleton v. Doe ex dem. Smith

ANDERSON, J. — This court in the case of Birmingham R. R. v. Seaborn, 168 Ala. 658, 53 South. 241, in discussing the rule as to refreshing the memory of witnesses from memoranda, reiterated the rule as laid down in the case of Acklen v. Hickman, 63 Ala. 498, 35 Am. Rep. 543, wherein it was said: “ ‘The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinguishing difference between testimony thus given and ordinary evidence of facts is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testifies to had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to> the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason. In the second class are em [202] braced cases in which the witness, after examining the memorandum., cannot testify to an existing knowledge of the fact, independent of the memorandum. In other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute it present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum, nor the testimony of the witness, can go before the jury. If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth of the contents of the memorandum/ — 1 Greenl. Ev. §§ 436, 437; Bondurant v. Bank, 7 Ala. 830.” We do not think that the witness James Smith brought himself within the influence of the first proposition, for the reason that, after repeated examinations of his own deed, he was unable to give the contents of the missing paper as a matter of independent recollection with that degree of certainty as to leave no reasonable doubt as to the substantial parts of the lost deed. —Elyton Land Co. v. Denny, 108 Ala. 562, 18 South. 561. In other words, the evidence of this witness, when brought to a final analysis, is that he knew that Kelly gave Smith and Williams a paper identical with his own, except perhaps as to. the description of the land,, bnt as to the-form or contents of same he could not testify except by way of comparison with and as dependent upon his own deed. This is to say that the witness,, after examining his own deed, did not and could not testify as to the contents of the missing deed independent of his own deed, as he made repeated efforts to do. so and corrected and changed his testimony so fre [203] quently, as to the contents of the missing instrument, as to demonstrate that he knew nothing about it except that it was similar to his own deed, except perhaps as to the description of the land. Therefore the testimony comes under the first proposition involved in the second class as dealt with in the opinion, and the testimony of this witness should have been excluded, as it Avas not offered in connection with his own deed after proof by him that he knew that his own deed was true and correct when the same was executed, so as to bring the evidence within the influence of the last proposition asserted in dealing with the second class in the above quotation. The trial court erred in not excluding the testimony of the witness James Smith as to the contents of what purported to be a deed from Kelly to Emanuel Smith and Billy Williams. We do not understand the case of Stewart v. Harris, 6 Ala. App. 518, 60 South. 445, as being in conflict with the foregoing rule, as the witness Packett had no personal knowledge of the correctness of the entries with which it was sought to refresh his recollection. As this case must be reversed, we will add, as a guide upon the next trial, that the trial court did not err in holding that a sufficient predicate was laid for the introduction of secondary proof of the deed to Smith and Williams. It Avas last traced into the possession of W. C. Easton, and every reasonable effort Avas shown to locate the original if never returned by him. Its absence was also sufficiently accounted for by those in charge and control of the effects of Emanuel Smith, deceased, and the proof shows that it could not "reasonably be located if ever returned to Williams, as the evidence shows that he and his wife were both dead, and that they left no known representative or relatives [204] We pretermit any consideration of the assignments of error based upon the tax deed and tax proceeding, for the reason that the same can have no bearing upon the real issue involved. The defendants do not defend as trespassers or under possession and color of title, but as heirs of Kelly, the man from whom the plaintiff deraigns title, and the sole question was whether or not the said Kelly conveyed the land to Smith and Williams, for unless Emanuel Smith, to whom the land was assessed, owned some interest in.the land the plaintiff acquired nothing through the tax deed, nor did she go into possession under said tax deed so as to make it relevant as color of title. On the other hand, if Smith had any title to the land, the plaintiff did not need the tax deed to get the title of said Emanuel Smith into herself, as she had a deed from the heir of said Smith, which said deed was not questioned by the defendants. The judgment of the circuit court is reversed, and the cause is remanded. Reversed and remanded. Dowdell, C. J., and Mayfield and de Graffenried, JJ., concur.