TALLADEGA CO. AL
COURT RECORDS
 

"Reports of cases argued and determined in the Supreme Court of Alabama during December term 1880" by George F. Moore, Vol.LXVII; Alabama Reports, Vol.67, pgs.221 to 229 (California State Law Library, Sacramento, 2/2004)
      POTTS v. COLEMAN; Supreme Court of Alabama; 67 Ala. 221; December, 1880, Decided.
      Appeal from Talladega Circuit Court. Tried before Hon. John Henderson.
      This was a statutory real action, brought by Summer A. Potts, I. Hudson, F. G. Hudson, and W. E. Hudson, against B. W. and T. H. Coleman, and F. A. Butt. The suit was commenced on May 1st, 1872. On the trial it appeared, that in 1845 Isaac Hudson was in possession of the land in controversy, exercising acts of ownership and control over it, clearing and cultivating it, and building and occupying houses on it. Edward M. Hudson, who was the only child of Isaac Hudson, went into the possession of the lands in controversy in 1849, and cultivated them until 1852, when he moved to another place, which his father had purchased for him, because he preferred it to the lands sued for, and he then sold the latter tract to J. M. Roberts. He sold the lands on credit, taking notes for the payment of the purchase-money, and giving a bond to make titles to the land on its payment. Two or three years afterward Roberts sold the land to Jos. H. Bradford and B. A. Smoot, who assumed the payment of the purchase-money due on the lands. Smoot occupied the lands for two or three years, and then released his interest in them to Bradford, who sold to H. W. Coleman and F. A. Butt. H. W. Coleman died before the commencement of this suit, leaving two heirs, B. W. and T. H. Coleman, who claim his interest in the said lands, in this suit. W. H. Coleman and F. A. Butt were in possession of the lands at the death of the former. Isaac Hudson died intestate on March 13, 1865, and E. M. Hudson died intestate on Oct. 23, 1861, leaving the plaintiffs his heirs. The defendants proved the execution of an instrument purporting to be a power of attorney made by Isaac Hudson to Marcus W. Duncan, authorizing him to convey the title to the lands to H. W. Coleman, and F. A. Butt, on payment by them to Duncan, of a note for $5,000, made by J. M. Roberts on Oct. 25, 1852, payable to E. M. Hudson. This power recites that Duncan is appointed attorney for Isaac Hudson, and empowers him to make a deed to H. W. Coleman, and F. A. Butt in my (Isaac Hudson's) name, conveying the lands in controversy, and continues as follows: "They being the lands sold by E. M. Hudson to said Roberts in 1852. By this power of attorney, it is intended to confer upon the said attorney Duncan, as ample power to execute warranty title in fee simple to the above lands, as I myself have. The said title to be made whenever the said parties pay the said Duncan a certain promissory note for $5,000, made by J. M. Roberts on October 25th, 1852, payable to E. M. Hudson on January 1, 1863, with interest from January 1, 1860; the interest on said note having been paid up to the last named date. The defendants then read this power of attorney in evidence to the jury. They then proved the execution of the following receipt: "27th December, 1859. Received of H. W. Coleman and F. A. Butt, four hundred dollars, in payment of the interest for 1859, on J. M. Roberts' note, made to E. M. Hudson for $5,000. Isaac Hudson." The plaintiffs objected to the reading of the power of attorney in evidence, but the court overruled the objection, and plaintiffs excepted. The defendants then proved the genuineness of the signature of J. M. Roberts to the following note: "On the first day of January, 1863, I promise to pay Edward M. Hudson, or order, five thousand dollars, with interest from January 1st, 1854, for value received, 25th October, 1852; the interest to be paid annually. J. M. Roberts." The defendants then offered evidence showing that this note was found among the papers of H. W. Coleman, after his death, and offered to read the note in evidence. The plaintiffs objected to this note as evidence in the case, but the court overruled the objection, and plaintiffs excepted. Plaintiffs then proved that the following writing, or sealed note, was in the hand-writing of Marcus W. Duncan, who was the person named in the power of attorney, mentioned above; that said Duncan died in 1863; and that said note was found among the papers of Isaac Hudson, after his death. Said note is in the following words: "$5,000. We obligate ourselves to pay to Isaac Hudson the sum of five thousand dollars by the first day of January, 1863, with interest from the first day of January, 1859, the interest to be paid January 1, 1860, and 1st January, 1861, and 1st January, 1862, and 1st January, 1863: As witness our hands and seals, this 1st November, 1859. H. W. Coleman, F. Alston Butt." The defendants objected to the reading of this note as evidence, and the court having sustained the objection, plaintiffs excepted. The court charged the jury, ex mero motu, "that if they believed from the evidence that H. W. Coleman and F. A. Butt, or either of them, had paid the note given by J. M. Roberts to E. M. Hudson for $5,000, and that said note was given for the purchase-money of the lands in controversy, and was the last payment, and all that was due on said land, then the jury should find for the defendants. The plaintiffs excepted to the action of the court in giving this charge. There was a verdict for the defendants. The rulings of the court on the evidence, and the giving of the charges, are assigned as error.
      [For subsequent opinion, see 86 Ala. 94, 5 South. 780.]
      (MAD: counsels' arguments not included here)
      [Opinion] BRICKELL, C. J. -- 1. The possession of lands under an executory contract of purchase, is not adverse to the vendor, so long as the purchase-money is unpaid, or until by the terms of the agreement, the vendee is entitled to demand of the vendor a conveyance of the legal estate. The vendee, though not strictly a tenant of the vendor, and though the technical relation of landlord and tenant is not created, is estopped from denying the title of the vendor, upon principle and reasoning like that which estops the tenant from disputing the title of the landlord; and the estoppel applies to whoever may acquire possession from the vendee.
      We do not, therefore, apprehend that it is at all material in this case, to inquire whether the immediate ancestor of the appellants had the legal title in the premises in controversy, or whether the title resided in his father, Isaac Hudson. The sale by Edward M., to Roberts, from whom the appellees derived possession mediately, was executory.
      No conveyance of the legal title was to be executed until the final payment of the purchase-money in 1863; and until then, possession, whether continuous in Roberts, or transferred to others, was not adverse; and of the title of the vendor there could be no dispute. There could be no pretense of payment in full of the purchase-money, at any earlier period than some time subsequent to the payment of the annual interest on Roberts' note, on December 27, 1859. Deducting the period of the war, during which the operation of the statute of limitations was suspended, ten years had not elapsed from any time, at which payment of the purchase-money could be claimed, when this suit was commenced. After payment the parties in possession could not have more than a perfect equity. Having that equity, it is presumed the possession is antagonistic to the vendor, because all duty to him has been performed, and if the possession is continuous for the statutory period, without some recognition of or subordination to the legal estate of the vendor, his right of entry, or of action, is barred. But until the expiration of the statutory period, the vendee, or those claiming under him, have but an equity, which can not be interposed to bar an action of ejectment, or the statutory real action. In either action, that of ejectment, or the statutory real action, while the plaintiff must recover only on the strength of a legal title, when he shows such a title the defendants can not dispute, asserted within the period prescribed by the statute of limitations, he is entitled to recover, whatever may be the equities of the parties, unless the jurisdiction of courts of law and of equity, are blended and confused, and transferred from the one or the other, at the mere caprice of parties, or to meet the varying exigencies of particular cases. The radical error pervading all the rulings of the Circuit Court, is that it permitted to be drawn in question the payment of Roberts' note for the purchase-money, which was wholly impertinent, immaterial, and without its jurisdiction. The fact could only have been material, if there had been subsequent to the payment, a continuous possession, under claim of title, for a period of ten years, during which the statute of limitations was operative. The error led to the admission of evidence of the payment of interest on Roberts' note for 1859, and to proof of the fact that his note was found in possession of Coleman, neither of which facts, was proper evidence in this cause.
      2. The quiet, peaceable possession of lands, for a distinct, marked period of time, attended by a claim of title and by acts of ownership, is prima facie evidence that the legal estate is in the possessor, and the possession will prevail over a subsequent possession not shown to be under a superior legal title. The prior, will prevail over a subsequent possession, however hostile, not continued for the period prescribed by the statute of limitations to bar an entry, or an action to recover possession, because in itself, and of itself, it is evidence of prior right and title, which must remain good, until there is other evidence than mere possession of a superior title. The peaceable, continuous possession of Isaac Hudson, of the premises in controversy, from 1845 to 1849, under claim of title, accompanied by acts of ownership, clearing, improving, and cultivating them, is more consistent with the presumption that he had the full legal estate, than that he was a mere trespasser, or was holding in subordination to the title of another. The presumption strengthens, and for all the purposes of this case, becomes conclusive, in the absence of evidence of a superior title, when it is shown that the possession terminated only when he voluntarily transferred it to his son, and there has been since no other possession hostile to it.
      The possession of the son was merely permissive, and was not hostile, but friendly and in strict subordination to the title of the father. The original intention may have been a gift, or an advancement of the lands to the son, and if that be true, the intention resting only in parol, a mere tenancy at will was created. Such a tenancy has in it no element of hostility to the title of the true owner, which is an indispensable ingredient of an adverse possession. Possession taken under it, could only be rendered adverse by a dissolution of the tenancy -- by an open, clear, positive, continuous disclaimer, and disavowal of the title of the party from whom it is derived, and the assertion of a hostile title brought to his knowledge. Adverse possession rests in the intention of the possessor -- as is sometimes said, "the intention guides the entry, and fixes its character." It is manifest from the evidence, that the son never intended the assertion of a title hostile to that of the father; nor is there any room for the imputation of such an intention to any subsequent possessor of the premises. The sale to Roberts was doubtless with the consent of the father, and to meet the wishes and convenience of the son. Coleman and Butt, the last and present possessors of the premises, recognized distinctly the title of the father, and that their possession was subordinate to it, and that it was his title, they contemplated acquiring, when to his agent, they made payment of the interest for 1859, on Roberts' note to the son. A more distinct recognition, was the substitution of their own note for that of Roberts, which was shown, when they produced Roberts' note, and the appellants offered their note, the body of which was written by the agent of the father, payable to the father, for the exact sum of the purchase-money, payable at the same time Roberts' note was payable, and stipulating to pay the interest annually, as the interest had been paid on Roberts' note. The power of attorney from the father, it seems, found its way into the possession of Coleman and Butt, the last and present possessors, and one of its stipulations is, that the agent and attorney shall convey the premises in the name and on behalf of the father, when Roberts' note to the son for the purchase-money was paid; and it recites the fact that interest on that note had been paid to January 1st, 1860, corresponding with the receipt for the interest for 1859, given by the agent and attorney, Duncan, which the appellees produced. While on the party claiming protection as an adverse possessor, lies the burden of proving a hostile possession, the court as matter of law pronounces the facts which must enter into and characterize such a possession. In the presence of the distinct recognition of the title of Isaac Hudson, shown in evidence, the court ought not to have hesitated to pronounce the appellees were holding in subordination to it. Nor ought there to have been hesitation in pronouncing that the appellees were estopped from denying the title of the son -- they were his vendees, entering into possession under him, and proposing to acquire title, by converting themselves into trespassers, enabling themselves, as it has been not too strongly said, "to steal the title of another, by professing to hold under it." The claim of title which must enter into and is the characteristic of an adverse possession, has in it no element of stealthiness, nor is it elastic or flexible. There must be publicity, continuity, and good faith in its assertion, leaving to the party in whom the title may reside, or from whom the possession was derived, no room for doubt, that all friendly relations are dissolved, that his title is not recognized, but disputed, and a hostile title asserted. The appellants are the heirs of Edward M., and of Isaac Hudson respectively, and it is unimportant whether a right of recovery is asserted by them in the one, or the other capacity. If they claim as heirs of Edward M., the appellees standing in the relation of his vendees, or entering and claiming under his vendee, could not dispute his title. Or, if as heirs of Isaac, there is sufficient evidence that the legal estate resided in him, and that the appellees and those under whom they claim have been holding in recognition, and in subordination to his title.
      3. We have said that it was erroneous, in this action, to enter on any inquiry whether the purchase-money of the lands had been paid. If the inquiry had been material, Coleman's possession of Roberts' note, it may be, would have been a circumstance tending to show its payment, or that he had acquired the beneficial ownership of it. It was, however, only a circumstance from which such a presumption could have been raised, open to explanation, and subject to be repelled by evidence that without payment the possession had been acquired. The note made by Coleman and Butt, the body of which was in the handwriting of Duncan, the agent and attorney in fact of Isaac Hudson, empowered to make titles to the lands, on the payment of Roberts' note, and to whom Coleman and Butt had paid the interest for 1859, on that note, was admissible for the purpose of negativing the presumption arising from Coleman's possession of the latter note. It was for the same amount, payable at the same time as Roberts' note, with the interest payable annually, as the interest on that note had been paid. The reasonable inference was that it had been substituted for Roberts' note, which Coleman and Butt must have paid, or caused to be paid, before they could obtain title. Its consideration, like the consideration of Roberts' note, was the purchase-money of the lands. The debt was the same, though the debtors were changed, and Coleman and Butt stood in Roberts' place, vendees in possession under an executory contract of purchase.
      In all of its rulings the Circuit Court was in error, and the judgment must be reversed and the cause remanded.
 

"Reports of cases argued and determined in the Supreme Court of Alabama during December term 1888-89" by Jno. W. Shepherd, Vol.LXXXVI; "Alabama Reports" Vol.86, pgs.94 to 102 (California State Law Library, Sacramento, 3/2004)
      POTTS v. COLEMAN; Supreme Court of Alabama; 86 Ala. 94; 5 South. 780; December, 1888.
      Statutory Action in nature of Ejectment.
      Appeal from the Circuit Court of Talladega. Tried before the Hon. LEROY F. BOX.
      This action was brought by Sumner A. Potts, Isaac Hudson and others, against Thomas H. Coleman, to recover the possession of a tract of land particularly described in the complaint; and was commenced on the 1st May, 1872. The tract of land contained 1116.85 acres, consisting of section fifteen (15), and parts of sections fourteen (14), eleven (11), and twenty-two (22) in township twenty (20), range three (3) east; but the defense was limited to about 700 acres of the tract, and a disclaimer was entered as to the residue. The plaintiffs sued as the heirs at law and descendants of Isaac Hudson, deceased, who died in Texas, intestate, on the 13th May, 1865; and whose only child, Edward M. Hudson, also died in Texas, intestate, on the 23d October, 1861, the plaintiffs being the sole heirs of each of them. On the trial, as the bill of exceptions shows, the plaintiffs introduced evidence tending to show that said Isaac Hudson was in possession of the land in 1845, under claim of ownership, and put his son (said Edward M.) in possession in 1849; that the son remained in possession until 1852, when he moved to another place, which his father had bought for him, "and then sold said tract to J.M. Roberts, on credit, taking notes for the purchase-money, and giving bond to make titles on payment of the purchase-money; that Roberts sold the land, two or three years afterwards, to J.H. Bradford and B.A. Smoot, who assumed the payment of the purchase-money; that Smoot occupied the land for two or three years, and then released his interest to Bradford, who afterwards sold the land to H.W. Coleman and F.A. Butt; that H.W. Coleman died in possession, before the commencement of this suit, and the defendant claims his interest in the land; that Isaac Hudson and his son moved to Texas in 1853, and there died as above stated. This was the plaintiff's title.
      The defendant first offered in evidence, after proving its execution, a power of attorney executed by Isaac Hudson to M.M. Duncan, which was dated December 30th, 1859, and contained these words: "I hereby authorize and empower said attorney (Duncan) to make, or cause to be made in my name, to H.W. Coleman and F.A. Butt, a warranty title deed to the following lands, situated in Talladega county, Alabama: section fifteen, township twenty, range three east; also, -----; they being the lands sold by E.M. Hudson to the said J.M. Roberts in 1852. By this power of attorney, it is intended to confer upon the said attorney (Duncan) as ample power to execute warranty titles in fee simple to the above lands, as I myself have; the said title to be made whenever the said parties pay to said Duncan a promissory note for $5,000, made by J.M. Roberts on October 25th, 1852, payable to Edward M. Hudson on the 1st January, 1863, with interest from 1st January, 1860, the interest on said note having been paid up to the last named date." The plaintiffs objected to the admission of this power of attorney as evidence, "because a blank space of one line followed the word also, and it showed on its face that it was not complete when it was signed, and did not describe or include all the lands intended to be contained in it." The court overruled the objections, and the plaintiffs excepted. The defendant then offered in evidence a receipt signed by Isaac Hudson, dated December 27th, 1859, for $400 paid by H.W. Coleman and F.A. Butt, "for the interest for 1859 on J.M. Roberts's note to E.M. Hudson for $5,000;" and it was admitted without objection. He next offered in evidence the said note of Roberts for $5,000, having proved the signature to the note, and the fact that it "was found among the papers of H.W. Coleman after his death;" and this was offered "in connection with said power of attorney." The plaintiffs objected and excepted to the admission of the note as evidence. The plaintiffs offered in evidence, in rebuttal, a note for $5,000, signed by H.W. Coleman and F.A. Butt, dated November 1st, 1859, and payable to Isaac Hudson, with interest payable on the 1st January, 1860, 1861, 1862 and 1863; and proved that said note was found among the papers of said Hudson after his death, and was in the handwriting of said M.M. Duncan, who died in 1863. The plaintiffs offered in evidence, also, a deed for the partition of the lands by agreement between said H.W. Coleman and Butt, which was signed by them, dated May 6th, 1862; and which recited that they gave their joint notes for $11,880 for the land, "and there has been paid on said notes $4,400 jointly." S.B. Glazener, a witness for plaintiffs, who was acquainted with all the parties, and had lived on the land, testified that, in January, 1864, he went to H.W. Coleman's house on the land, for the purpose of impressing his negroes into the service of the government; when Coleman said, referring to the recent death of his son in the army, "I am losing my children, you are taking my negroes, and I can not pay for my land."
      The defendant offered in evidence the deposition of J.M.N.B. Nix, which had been taken on interrogatories and cross-interrogatories. The affidavit for taking the deposition, which, as set out in the transcript, was made and subscribed on the 4th September, 1863 [1883?] (MAD: sic), stated that said Nix "is a material witness for the defendant in said cause, and that a material part of the defense to said action depends exclusively on the evidence of said witness." The record does not show when the direct interrogatories were filed but the notice to the plaintiffs' attorneys was issued on the 10th January, 1884, and served on the 12th January; and cross-interrogatories were filed in time to be answered in the deposition, which was taken on the 24th August, under a commission issued on the 17th June, 1884. The bill of exceptions states in reference to it: "The clerk did not prescribe any notice to be given to the plaintiffs or their attorney, of the time and place of examination of the witness; no notice of the time and place was given to them or their attorney, and neither they nor their attorney attended said examination." Before entering on the trial, the plaintiffs moved to suppress this deposition, (1) "because the affidavit and the deposition show that the witness resided in Talladega county, at the time the application was made for a commission, and at the time of his examination;" (2) "because the affidavit does not show a sufficient ground for taking said deposition;" and (3) "because the examination of the witness, without notice to plaintiffs or their attorney, was illegal." The court overruled the objections, and the plaintiffs excepted.
      The 4th direct interrogatory to this witness was in these words: "State whether or not at any time Henry W. Coleman exhibited to you an instrument in writing purporting to convey the title to the land in controversy, or any part thereof, to any one; if yea, state when, as well as where, and under what circumstances; whether or not you read said instrument, and whether the same purported to be signed by any one; and what name or names, if any, were signed thereto; also, whether the name or names of any witnesses were subscribed thereto, and how many, and who they were, if you remember. State whether or not you now have a recollection of the contents, or the substance of the contents, of said instrument in writing; and if yea, state the contents, or the substance of the contents thereof, as clearly and as fully as you can." At the time of filing cross-interrogatories, the plaintiffs objected to the latter part of this interrogatory, because it calls for "the contents, or the substance of the contents" of the instrument, instead of "the words, or the substance of the words;" and they renewed their objection at the trial, duly excepting to the action of the court overruling it.
      The answer of said witness to the 4th interrogatory was as follows: "Henry W. Coleman did at one time exhibit to me an instrument in writing, purporting to convey the title to a portion of the lands in controversy to him, Henry W. Coleman. I can not now state definitely what it was, but remember that it was at his own residence. He and I were old friends, and I was at his house taking dinner. He was rejoicing at having got the deed, and handed it to me in confirmation of what he said. I read said instrument at his special request. According to my best recollection, it was signed by Marcus M. Duncan, as agent for Isaac Hudson. I remember that there was subscribing witnesses to said instrument, but can not now remember their names. There were two names of subscribing witnesses, according to my best recollection; but, as before stated, I do not recollect who they were, nor whether I knew them. I have a recollection of the substance of the contents of said instrument in writing. The substance was an indenture between Isaac Hudson, by his agent, M.M. Duncan, and Henry W. Coleman and F.A. Butt; in consideration of a certain amount of money paid by Coleman and Butt, the amount of which I can not recollect, the said Isaac Hudson granted, bargained and sold the lands which are the subject-matter of this suit, to Henry W. Coleman and F.A. Butt; and my recollection is, that it was dated and signed, and witnessed as I have already stated; but I do not remember the date, nor the names of the witnesses." The same facts were stated by the witness, in substance, in answer to other interrogatories; and his answers to the several cross-interrogatories were not materially different. The plaintiffs objected to the admission of this answer "as evidence to prove either the former existence, the loss, or the contents of said deed," (1) "because the witness does not prove the execution of said instrument, or the handwriting of the said maker;" (2) "because he testified that there were names signed to said instrument, or purporting to be signed, by subscribing witnesses, whom he did not know, and whose names he did not remember;" (3) "because there was no evidence of the execution and identity of said supposed deed;" (4) "because there was no evidence of the previous existence, identity, or handwriting of the supposed witnesses;" and (5) "because there was no evidence before the court or jury of the factum of the supposed deed." The court overruled the several objections, and admitted the evidence; and the plaintiffs duly excepted. The defendant adduced evidence of fruitless search among the papers of his deceased father, for the alleged deed executed by Duncan as attorney for Isaac Hudson, when they found the note and the power of attorney above mentioned; and the court admitted this evidence against the objection and exception of the plaintiffs.
      The several rulings of the court on the evidence, as above stated, are now assigned as error.
      HEFLIN & BULGER, for appellants.
      BISHOP & WHITSON, contra.
      (MAD: case and code citations in following opinion omitted here)
      [opinion] SOMERVILLE, J. - 1. We can perceive no objection to the admissibility in evidence of the power of attorney made by Isaac Hudson to Duncan, bearing date December 30, 1859. It relates to a part of the land in controversy, showing authority for its conveyance to the vendees whenever they paid the remainder of the purchase-money. Its relevancy was not destroyed or impaired by the fact that it did not embrace the entire tract.
      2. The possession by H.W. Coleman of the first note due E.M. Hudson by Roberts was prima facie evidence of its payment, either by him or by the maker, in view of the fact that Coleman had purchased the lands upon which the note constituted a vendor's lien, and he was therefore as much interested in paying the debt as if he were the debtor. And the note being found among Coleman's papers after his death, was presumptively in his personal possession while living.
      3. The affidavit was sufficient to authorize the taking of the deposition of the witness Nix. It alleged that "a material part of the defense to said action depends exclusively on the evidence of said witness." This is expressly made one of the statutory grounds for taking depositions to be used in civil cases.
      4. The plaintiffs' attorney having crossed the interrogatories propounded to Nix, without raising any objection as to notice of the time and place of taking the witness' deposition, he must be held to have impliedly waived such objection. To permit the objection to be raised at the trial, for the first time, would enable parties to experiment, at the expense of their antagonists, upon the testimony of witnesses, and thus often reap an unfair advantage.
      5. It was no valid objection to certain interrogatories in the deposition, that they called for the substance of the contents of the deed alleged to have been lost. It was unnecessary to prove the words of the conveyance, and the answers of the witness satisfactorily showed the substance of a valid deed under the statute, with the requisite operative words of transfer -- "granted, bargained and sold." "The proof of the contents of a lost paper", as said by Chief Justice Marshall, "ought to be such as to leave no reasonable doubt as to the substantial parts of the paper." We should say, in civil cases, the proof ought to be such as to furnish satisfactory evidence of its substantial parts. Under the statute, any written instrument, signed by the grantor, or by an agent having written authority, "is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument."
      6. The motion also to suppress, based on the fact that Nix was a resident of Talladega county at the time the deposition was taken, was equally untenable, in as much as the statute authorizes depositions of residents to be taken on the ground set out in the affidavit. It is quite another matter that the deposition of a witness taken on this ground -- viz., that "the defense, or a material part thereof, depends exclusively on his testimony" -- is taken de bene esse, and can not be introduced if the witness is shown to be alive, and to reside in the county at the time of the trial. The motion to suppress was not predicated on this special ground, and was a waiver of other grounds. The court did not err in overruling it.
      7. We are unable, however, to resist the conclusion, that no sufficient predicate was laid for the introduction of secondary evidence of the contents of the alleged deed, which was a question addressed to the consideration of the court, and not of the jury. To justify such evidence, especially when exclusively oral, the following facts must be established to the satisfaction of the court: (1) the existence and execution of the original paper, as a genuine document; (2) the substance of its contents; (3) its loss, destruction, absence from the State, or other satisfactory reason for failure to produce the original, which may be shown by such diligent search for it as would raise a reasonable presumption of such loss or absence. The one of these facts is as necessary to be proved as the other, and the failure, therefore, to prove either is fatal to the right to introduce the secondary evidence. We find in the record no satisfactory evidence of the genuineness of the paper exhibited by Coleman to the witness Nix, which he claimed to be a deed from Hudson to himself and Butt, and purporting to be executed by Duncan as attorney in fact for the grantor. The execution of the paper is not established; and without this, the introduction of secondary evidence of the contents of the lost paper is unauthorized. Nix does not testify to the handwriting of Duncan, and no satisfactory evidence any where appears in the record as to the genuineness of Duncan's alleged signature. Every fact testified to by Nix might be true, and yet the paper exhibited to him by Coleman might have been a forgery, or, to say the least, not genuine. We need not comment on the fact, that Nix was testifying as to a paper which he claimed to have seen more than twenty years before his examination. It is sufficient to say, that the opinion of the court is that, under the fundamental rules governing the admission of secondary evidence, the Circuit Court erred in admitting the contents of the alleged deed to be proved, without first requiring satisfactory evidence as to the existence of a genuine original executed by the grantor, or his written authority.
      For this error, the judgment of the Circuit Court must be reversed, and the cause remanded.
 

Return to the Talladega Co. AL Research File
 

END

Return to Index to Duncan Research Files in Alabama

Return to The Genealogy Bug's Home Page