The Montgomery advertiser., 1901-07-17


 of ejectment, a declaration by one who was formerly owner of the property sued for, made to his son, while not in possession, that he had sold and given possession of the land, is purely hear say and inadmissible.
 6. Same; same; same-In an action of ejectment, the fragment of deed under which one of the parties to the suit claims, which Is identified by paro evidence, and the attesting wit nesses therto are dead or can not be produced and 1t appears therefrom that the lands involved in suit were con- veyed to the grantor of the party seek ing to introduce 1t, is admissible in evidence in connection with parol proof that the missing portion of the paper could not be found with the other papers of the grantee of said deed, or among those belonging to the party to the suit seeking to introduce 1t.
 z. Same: same: same In an action of ejectment. where the plaintiff and the defendant each claim title by ad verse possession. and 1t is shown that the lands involved in the suit were heavily timbered. and that timber was cut therefrom by certain named per- son, for the purpose of burning char coal for the plaintiff or the grantor Of the plaintiff, it is competent for the de- fendant as witness to testify that he gave such person permission to cut from the lands sued for such timber for the purposes designated. and 1t is no objection to the competency of the admissibility of such evidence that said person who had cut the timber was dead at the time of the trial. s. Same; same; same.-In such case, a deed from the defendant to a railroad company conveying right of | way across the land in dispute, is ad- | missible in evidence as manifesting an act of ownership and as circumstance | tending to show the assertion of | claim of ownership on the defendants part.
 g. Same; same; same-In an action of ejectment, where the plaintiff and the defendant each claim title by ad- verse possession, it is permissible for witness to testify that many years | before the trial the defendant brought | to him the original patent to the lands | involved in the suit; possession by the l defendant of the original patent being | circumstance for the consideration of | the jury tending to show the claim of ownership of the land by the defendant 10. Same; same; same.-In an action of ejectment, is competent for the | widow of one of the persons through | whom the defendant claimed. to testify | that her husband purchased the land | in dispute from the original entryman, | giving the time of such purchase; and
 such testimony is not subject to the
 objection of being hearsay, when the
 statement is made by the witness as of | her own personal knowledge.
 | II. Ejectment; adverse possession:
 charge as to plaintiffs right of re- l covery.-In an action of etectment, where the plaintiff bases his right of
 recovery upon adverse possession. 1t is
 not error for the court in it's oral l charge to the jury to instruct them | that "if the plaintiff has not proved adverse possession for ten yeSSs. then
 it can not recover" and further that plaintiff must recover on the strength
 of its own right"
 l F. Same: same; same-1n order for | the plaintiff to be entled to recover in an action of ejectment, he must show
 a better title than the defendant has | to the land in dispute; and the burden
 rests upon the plaintiff to make such proof. Therefore. a charge asserts a correct proposition and Is properly 1 given at the request of the defendant l WnlCH lnSLTuClS Jury Ihdt H upoit | the evidence before them and the
 charge of the court they are unable
 to say that plaintiff has shown better
 title than is shown by his evidence, | that the plaintiff is not entitled to l recover"
 l 13. Same; same; charge upon effect | of evidence.-In an action of ejectment, | where the plaintiff claims title by ad- | verse possession, 1t is not error for the
 court, at the request of the defendant, | to instruct the jury that there is no
 evidence before them or any color of
 title to the land in dispute in the plaintiff or in either of the parties | through whom the plaintiff claims. prior to the designated time; the
 record sustaining the predicate as to
 the facts stated.
 14 Same; same; charge as to right
 of recovery in common law ejectment.
 In a common law action of eject
 ment where number of de-
 misses are laid in different parties
 charges which instruct the jury that fl
 said designated parties had, prior to
 the commencement of the suit. convey
 ed away their title to the land in suit
 then there can be no recovery on the
 demises laid in them respectively, as-
 sert a correct proposition and are
 properly given at the request of the
 defendant.
 15. Ejectment; adverse possession; charge as to excluding the period of
 the Civil War.-In computing the
 statute of limitations, and to give title
 by adverse possession. the period of the
 war between the States, between
 January II. 1861 to September 21, 1865
 must be excluded; and in an action oi