Laster v. Blackwell

• Citation: 128 Ala. 143,30 So. 663
• Parties: LASTER ET AL. v. BLACKWELL ET AL.
• Decision Date: 19 April 1901
• Court: Supreme Court of Alabama

30 So. 663

128 Ala. 143

LASTER ET AL. v. BLACKWELL ET AL.

Supreme Court of Alabama

April 19, 1901

Appeal from city court of Etowah; John H. Disque, Judge.

Action by William Laster and others against Glenn Blackwell and others. Judgment for defendants, and plaintiffs appeal. Reversed.

Plaintiffs claimed title under a deed alleged to have been executed by Micajah Sanson and wife to Eliza Laster for life, with remainder to her children, who are plaintiffs. This deed was claimed to have been lost, and, after preliminary proof of this fact, plaintiffs offered evidence of its contents; the facts relating thereto being sufficiently stated in the opinion. When the evidence for the plaintiffs closed, the defendants offered none, but moved to exclude all of the testimony in behalf of the plaintiffs. This motion was granted. To this action of the court the plaintiffs excepted and thereupon suffered a nonsuit, "reserving the right of appeal to the supreme court by bill of exceptions for the decision of the supreme court upon the errors complained of." The other facts are sufficiently stated in the opinion.

Grigsby E. Thomas, Jr., N. G. Canning, and B. F. Hurst, for appellants.

Dortch & Martin and J. W. Aiken, for appellees.

SHARPE J.

This action is in ejectment, and was tried without a jury. Rulings adverse to the plaintiffs, and excepted to by them, were made during the production of their testimony, having effect to exclude parts of it, and at the close of their evidence the whole of it was excluded on motion of defendants. To this ruling also the plaintiffs excepted, and thereupon took a nonsuit. Objection is advanced by appellees to the consideration of the several assignments of error on the ground that it is not shown that the nonsuit was caused by the several rulings. On appeal after a nonsuit under the statute, to bring up rulings of the court for review it must appear that the nonsuit was in consequence of those rulings but it is sufficient if the record establishes that fact though there be no express statement of it. Shields v Byrd, 15 Ala. 818; Downs v. Minchew, 30 Ala. 86. The assignments of error relate alone to rulings in the exclusion of evidence, and exceptions having been reserved to each, a fair construction of the bill of exceptions sufficiently indicates that the nonsuit was in consequence of those rulings cumulatively. They will accordingly be considered.

The plaintiffs are described in the complaint as children and heirs at law of Eliza Laster, deceased, but the proof shows that they do not derive title from her, since they introduce a conveyance of the land in fee by Eliza Laster to Kyle and Moragne, which left no inheritable interest in her, whatever her interest may have been before that conveyance. Inferably from the character of the evidence offered by them, the plaintiffs sought to show that their mother had only a life estate under a deed made by their grandfather, Micajah Sanson, at some time between 1850 and 1860, conveying the land to her for life, and thereafter to the plaintiffs; so that their right arose after her death as remainder-men by virtue of the supposed deed. The plaintiffs' claim, not coming through their mother, would not have been strengthened by proof that she, or subsequent grantees whose title depended upon hers, ever bought, sold, owned, or had the land in possession, and plaintiffs suffered no injury from the exclusion of evidence tending only to show such facts. The defendants were not shown to be in privity of estate with any of those grantees, or with Micajah Sanson, and any statements made by them were, as to defendants, mere hearsay, and inadmissible.

Questions to witnesses calling for reasons why they did not buy the land were improper.

The supposed deed was not produced, and in the establishment of their claim of title it devolved upon the plaintiffs primarily to account for its nonproduction. There is evidence tending to show the execution of a deed from Micajah Sanson to Eliza Laster, and to trace its custody as passing to Kyle and subsequent grantees, successively, until it reached Lifus and Litner Littlefield, and to show it was not found after a search by Litner and the widow of Lifus Littlefield, though the character or the extent of their search is not shown. There is also evidence negativing its custody by two of the plaintiffs, and by others who might be supposed to have such custody. The facts do not raise a presumption or probability that plaintiffs ever had the deed, and it is therefore immaterial that two of them, who are not shown to have been present at the trial, were not examined to explain its absence. Beard v. Ryan, 78 Ala. 37. As a general rule, if the loss of a paper is relied on to account for its nonproduction, the fact of loss is not established without proof of diligent search where the paper is most likely to be found (1 Greenl. Ev. § 558; Bogan v. McCutcheon, 48 Ala. 493; Donegan v. Wade, 70 Ala. 501); and the particular character of the search must be shown ( Calhoun v. Thompson, 56 Ala. 166, 28 Am. Rep. 754). Where it appears that its custodian was not the party seeking its probate, but was a third person, who cannot...