The Montgomery advertiser., 1909-01-19
Head Notes of the Decisions
 of fhe Alabanra Supreme Court

u5mhDnUHuMun unauirulaUmuuU11n1 powers; presumption.--The Act of Oct. II. 1903, General Acts 1908. ?. 3ss) rec lates only to cities of certain class, and the courts cannot presume in sup Adppting such an ordinance belongs to that class. especially where the only evidence within the courts judicial knowledge shows to the contrary.
 {. Animals: restraint; remedy---Where an ordinance was passed under the General Act of ieoa. prescribing fees fer releasing stock taken up, and au- thorify to sell 1t on default of payment thereon, both the ordinance and the act are directed against the animal, and not against the owner. save as he may bs affected by the sale of it. and, there- fore. does not subject the owner to personal liability for damages done by such stock. &
 3. Municipal corporations; ordinances: violation; extra territorial effect.--- Where one permits stock to run at iargs outside the city limits which stray within the city and commit dam. ages, such nonresident did not fncHr a liability for civii damages. since the large with3n the city was not efYectual outside the limits of the city.
 Appeal from Etowah Circuit Court.
 Heard before Hon. John w. Inzer.
 Reversed and rsmanded. Opinion by simpson, J.
 Tyson. c. J.. Denson and Mcclellan, JJ., concur.
 LECRoIx v. MALONE. ct al.
 Ejectment.--( Decided November 2e 1907. q South, 72s.)
 rf hV fananf In common.--Against every person not claiming under tenant In common one tenant in common may sue for and recover the entire tract in his own name.
 2. Adverse possession; psrmissive possession; presumption.- -Permissive possession Is presumed to continue per- misssive until notice is brought home to the holder of the legal title of q change from a permissive to hostile or adverse possession, whether such permissive possession lis expressed or arises by implication on account of a mistaken holding by an adjoining own CT without any intention of claiming beyond the true line.
 g. Same; change of character; no- tice to owner.--Where the entrance is in It's inception not hostile and under ciaifn of right, notice of the change RV8aD88t0At brought home toN the owner to impute laches to him as the basis of limita- tion, under the theory upon which ad- verse possession is based as to title.
 A Same: evidence. .--The evidence ip this case stated and examined and held to show that the possession of the real estate was permissive and in re- eognition of the rights of the true owner. So that the possession did not wNs h AA eaf f.r. in the absence of notice of a change In the character of posseasiuii.
 6. Trusts: death of trusteei abey- ance of title..-Aithough at common law the fee, to land is never in abey- ance and deseends to the trustees heirs, under Section 1044. Code 1896, the trust does not descend to the heirs of the trustee and on the death of all the trustees of an express trust the fee is in abeyancs until the new trustees are appointed.
 6. Adverse possession; permjssive possession .--A permissive possession cannot be converted into an adverse holding until the appointment of new trustees, where all of the trustees of an express trust were dead, since until the appointment of a new trustee there was no one on whom notice of the change in the character of the possess sion could be served. -a
 q. Limitation of action; laches..- LAches cannot be imputed whsFe there is no one who can sue or be sued nor can the statute of Limitations be start- ed to running until there is some one who can sue or be sued.
 6. Adverse possession; elements. --A possession to be adverse must operate to disseize or oust some other person of his possession or right of posses sion.
 Q. Same; possession; burden of proof--In the absence of evidence ex- pressly or impliedly evincing a hostile possession the presumption is that such possession Is in subordination to the legal title. and a party claiming title by adverse possession must prove his entry and continuous occupancy for the statutory period with the intent to claim the land as against all persons.
 10. Evidence: conclusion.- ques- ton asked witness as to when per- son acquired certain real estate Is ob- jectionable as calling for a conclusion; and if referring to the title the deed conveying the land is the best evi- dence
 II. Appeal and error; harmless err TOT; exclusion of evidence. 1.-The exclu- sion of evidence as to when the gran tee acquired property is not prejudi-
  propesty to such person in evidence.
 I.2 Pleading; striking out pleas. = The striking out of special pleas of the statute of limitations as answers Go a suit in ejectment Is not error, since under the plea of not guilty any defense is available. a4
 13. Ejectment; evidence; admissi- bility. --The deed being operative un- der the statute of uses, such deed was admissible in evidence where it em- braced a part of the land in contro- versy and formed link in plaintiff's chain of title, although the grantor uses.
 IA. Boundaries; evidence Where there is no fixed and official establish- ment by monument, testimony of witt ness as to the location of the corner, based on his statement of the sur rounding facts which determined it's location. was admissible.
 15. Adverse possession; instruction. "A charge asserting that if the jury found that the professor of defend ant had been In the exclusive and hos tile possession of the land for ten years, plaintiff could not recover, was erroneous, where the evidence tended to establish paper title in the plaintiff to the entire tract. and the entry by predecessor in title as to 3 part of the premises in controversy was permtssive in its inception. and there was no evidence of disseisin as to such party.
 16. Evidence; opinion; conclusion. --A statement by one in possession of the land that if the adjoining owner would begin measuring from a proper point he would get all the land he was