Landers v. Hayes

• Decision Date: 18 May 1916
• Docket Number: 8 Div. 899
• Citation: 72 So. 106,196 Ala. 533
• Parties: LANDERS v. HAYES.
• Court: Alabama Supreme Court

72 So. 106

196 Ala. 533

LANDERS v. HAYES.

8 Div. 899

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Ejectment by Lillan Hayes, pro ami, against M.R. Landers. Judgment for plaintiff, and defendant appeals. Affirmed.

The facts sufficiently appear.

The following charge was given for plaintiff:

(1) If you are satisfied reasonably from the evidence that at the death of Noah Hayes his son, James, was not 21 years old and if you are further satisfied reasonably from the evidence that the land in question was worth more than $2,000 at the time of the death of James Hayes on August 31, 1907, then your verdict should be in favor of plaintiff for an undivided one-half interest in the lands sued for, together with the value of the rental during the time the defendant had been wrongfully in possession.

The following charges were refused to defendant:

(B) The burden of showing title to land in plaintiff is upon plaintiff, and, if plaintiff has left your minds in doubt as to any material fact upon which her claim of title rests, and that doubt is a reasonable doubt, your verdict should be in favor of defendant.

(D) There is no evidence before you as to who changed the monument at the grave of James Hayes, or for what purpose said monument was changed, if it was changed.

(E) The burden rests upon plaintiff to reasonably satisfy the jury that James Hayes was not of age when his father died, or that the lands were left by Noah Hayes at the time of his death were worth more than $2,000.

(F) The burden rests upon plaintiff to reasonably prove that the lands were not exempt to the widow, and did not vest in her upon the death of Noah Hayes.

E.O McCord and Thomas E. Orr, all of Albertville, for appellant.

Street Isbell & Bradford, of Guntersville, for appellee.

ANDERSON C.J.

This was an action of ejectment, and the plaintiff proved a prima facie title to the land by descent; that is, that she was the only child of James Hayes, deceased, and that James was the only child and sole heir of the admitted owner of the land Noah Hayes, deceased. The defendant attempted to overcome the plaintiff's claim by inheritance, under the contention that upon the death of the said Noah Hayes his widow was entitled to the land in question as exempt to her, and, as the said Noah owned no other land, and as this land did not exceed in value $2,000, the title, under the then existing statute (Code 1896, § 2098), vested absolutely in said widow as the only child left by the said Noah Hayes was not a minor at the time of the death of his father. If these facts were true, then this plaintiff should not have recovered, but it seems that the jury found that the land did not exceed the exemption in area and value, and was therefore exempt, but they must of necessity have found that James Hayes was a minor at the time his father, Noah, died, and took a half interest in the exemption with his mother, as a verdict was returned for this plaintiff for an undivided one-half interest in the land. The result is that the pivotal point in the case is the minority vel non of James Hayes when his father died, and which involves the date of the birth of the said James as well as the exact time of the death of his father, Noah Hayes.

The rule seems to be that hearsay evidence is always admissible to prove pedigree, and this term embraces not only questions of descent and relationship, but also the particular facts of birth, marriage, and death and the time when these events may have happened. Such evidence is held admissible not only from the extreme difficulty of producing any better, but is resorted to upon the ground of the interest of the declarants in all such matters of family relationship and connection. These declarations, however, whether in writing or by word of mouth, should be confined to some members of the family as distinguished from a general rumor or neighborhood reputation, and as a predicate therefor it must appear that the declarant has since died. Cherry v. State, 68 Ala. 29; White v. Strother, 11 Ala. 720; Elder v. State, 123 Ala. 35 26 So. 213; Rogers v. De Bardeleben, 97 Ala. 154, 12 So. 81. Age may be proved by the testimony of the person whose age is in question, and the fact that his knowledge is derived from statements of his parents or from family reputation does not render the testimony inadmissible. The statement of a party as to his own age is deemed primary, and not secondary, evidence. Cherry's Case, supra. While the books sanction the rule that one's age can be proved by the declarations of a member of his family since deceased, we find no case which holds that the age of a person since deceased can be proved by declarations made by him in life, nor do we find a case holding that such declarations are not admissible. The case more nearly bearing upon the question is the Rogers Case, supra, wherein the court, in stating the rule as to declarations and...