The Montgomery advertiser., 1908-02-02

session. fttlc--AB the ptA9NtfN Aus@
show actual possession. or titis givink
constructive possession, to maintain
frespaeE, evidence THAT plaipti6a RODE
along = highway running through the
land n question -ph several oceasionss
and paid taxas q few times. was net
suficisut to show such aetusl possess
Sion
where tho defendants proved actnel
posssssion. = plaintiff IN trsspass esu ',a
have no possessjon, actuaIsor construc-
tive, although he may have had me
). rrsver and conversion; title pos
sesssIor1--pIaintifEs may rsoover on
their title IN trovsr although they did
not have possession.
.. Same; burden OF procf-ln an
action for trover for timber taken from
land, It was admitted that title TO the
hand had been In plaintiff's ancestor
ana defendant could defeat recovery
only BY chewing that such title had
become Invested.
5. same; outstanding interest; de-
fsnse.- plaintiffs in troyer claim title
as heirs Of their mother and showed
title from the other heirs to them
selves, except as 10 the intsreat Of one.
Held: Such an outstanding interest
was not a defense. but terved only to
reduce plaintiffs recovery.
g. Acknowledgements; identity OF per-
son--An acknowledgment setting out
an entirely different person from the
enc signing the deed is invalid, and
such deed is not seif-proving under
the enabling recording act. -
I. Evidence. handwriting: signature
90 deed---A witness stated that she sent
. deed 70 her brother In Colorado. that
he signed and returned It to her, and
that she knew his handwriting. but did
not state that the signature 20 the
deed was in his handwriting. Heidi
THAT her testimony az to the signing
was inconpetent as she did not see
the act and the other evidence was In
suficient TO admit the deed as evidence
8. Adverse possession; extent; color
Of titie--The actual adverse possession:
Of house and q small parcel OF land
surrounded II. unless the possessor hed
aot extend the possession TO such larger
tract.
.. Declaration Of claim--Uniess the
dsclaratfon OF adverse claim is made
and recorded - required BY Section
1881, Code 1895. actual possession OF q
house and cleared lands not held under
color OF title or some bona hde claim.
e unavailing to bring about an al
10. Trover and conversion: possess
sion; jury auestion--unaes the evidence
in this case the question As to the
plaintiffs actual possession OF the land.
other than that on which defendant's
house stood and small parcel Of
cleared land thereabout. was a Ques.
tIon for the determination Of the jury.
II. Evidences hest and secondary ev-
idencS--A Though the facts may war;.
rant "a admission OF secondary evi.
denee. the party offering It must pro-
duce the best Of that character Of evi-
dsnce within his power. or which APP
pears to be within his power.
IL. same: predicate; deeds; destfuc.
ton; signing--WheTe defendant teati-
fed 20 the burning Of certain deed9
and in order TO lay . predicate had To-
describe them 30 As 70 show what pa
psrs were de8troyAd.. evidence as to
whose eiBniature was attached thereto
was adIntssibae.
Ia Appeal; Admission OF evidence;
naeeesikx Of oh3ection Ia trial court
where Subsection or exception was not
taken to admission Of evidence aa to
the coqtMnte OF lost deed after predi-
cate laid plaintiffs cannot, on appeal,
: raise the oh iection that there was bets
ter evidence Of the contents and exc
cution OF deed than that offered
IL. Evidence; best ana secondary
Defendants claimed under . deed al
legged to have been burned. ana IL was
competent FER them to prove enc burn
ing. and the identity ok the deed ae
aIlaons. khe papers destroyed.
Is. Evidenoes deed; execution: jury
questions Under the evidence Ia this
case Il was = question FOR the jury 60
have been destroyed aver existed and
was Destroyed.
lie. same: bsst ana secondary syi.
dence-~The contents Of letters alleged
TO have been wFittan BY q plaintiff to.
Defendant could not be shown BY
parol in the absence Of evidence that
plaintin had made an EFFORT to have the
H. Appeal; evidence; prejudice--
Where . fact 10 admitted. Il 10 not
pretudicial to exclude evidence 70 es-
tsblish such . fact.
IS. witnesses: corroherativs evi.
denee--DAfendants claimed that "
convened the land to their grAntor.
which fact plaintiff disputed. Held: A.
receipt from II to DEFENDANTS alleged
grantoY and testimony that the 9raTtet
claimed the land, was adrnissibla a.
corroborative Of DEFENDANTS claim.
Appeal from Mobile Circuit Court.
Heard before Hon. Samuel %. Browne.
Reversed and rsnandsd. opshion by
Anderson, j.
,Tyson: {: ). ana simpson ana benson,
NN~@NN~r
LOUISVILLE AND NASHVILLE RAiE..,
ROAD CONAN onFRtsEy "a HIecIN-
Trespaas and Cage.--f Decided NUv. IL,
1907. - So. Rep. ST2.)
I. Action: jpinder; trespass and
case.--Under. Section 1888. Code 1895.
a count In trespass which alleges
plaintiffs possession Of certain real es.
tate on which were certain springs OF
water; that from thas9 syringe the
railroads pumped grAat deal OF
water, and rs q result one or more Of
the springs were filled up and plain
tits deprived OF the use OF the water.
and q count in case alleging that de-.
PENDANTS caused q part OF the water
to be pumped from the land and were
so negligent in and about the pump
ing that . part OF the springs were
nlied, and pIaintifEs deprived Of the
use OF the water. may be Joined as
they relate to the same subject
2. Trespass: complaint: aafkicieAey
"A complaint alleging plalhttEh poe
session Of certain real estate on which
we're certain sprIn6a &C Water. that
the defendant raifroad pumped . great
part Of tbs water and o. q conse-
quence. one or mere OF the springs
were Allied and piaintiTs deprived Of
the uee OF the water, Il not subj ect
10 demurrer on the ground that Il
did not set out q cause Of action III
trespaes, and did not show that the
acts done were done wpongfuiiy OF
without plalntiff's consent