Madison v. Robinson

• Decision Date: 22 February 1928
• Citation: 95 Fla. 321,116 So. 31
• Parties: MADISON v. ROBINSON et al.
• Court: Florida Supreme Court

116 So. 31

95 Fla. 321

MADISON v. ROBINSON et al.

Florida Supreme Court

February 22, 1928

En Banc.

Error to Circuit Court, Escambia County; A. G. Campbell, Judge.

Ejectment by P. H. Robinson and another against Francis Madison. Judgment for plaintiffs, and defendant brings error.

Reversed.

Ellis C.J., and Buford, J., dissenting.

Syllabus by the Court

SYLLABUS

Burden of showing disqualification of witness to testify to communications with party since deceased is on party objecting; unless record shows interest of witness testifying to communications with person since deceased, it may be shown by witness' own answers or evidence of other persons (Rev. Gen. St. 1920, § 2705). The burden of showing disqualification of a witness by interest, under the proviso in section 2705, Rev. Gen. Stats., is upon the party making the objection. Unless the state of the record itself shows such interest, it may be shown either by the witness' own answers or the evidence of other persons.

Witness' interest affecting his competency is ordinarily preliminary question for court. The question of interest, as affecting the competency of a witness, though involving fact, is ordinarily a preliminary question, to be determined by the court preceding the admission of the testimony to the jury.

Interest disqualifying witness to testify to communication with person since deceased must be real, as distinguished from merely doubtful or apprehended interest (Rev. Gen. St. 1920, § 2705). The disqualifying interest in the event of a suit referred to in the statute, must be real, as distinguished from a merely doubtful or apprehended interest.

Test of witness' interest, disqualifying him to testify to communication with person since deceased, is whether he will gain or lose directly from judgment or whether record will be evidence for or against him in other action; interest disqualifying witness to testify to communication with person since deceased must be present, certain, and vested (Rev Gen. St. 1920, § 2705). The true test of the interest of a witness, under section 2705, Rev. Gen. Stats., is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him, in some other action. It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent.

Interest disqualifying witness to testify to communication with person since deceased must be in event of cause itself, and not in question to be decided; witness' liability to like action or standing in same predicament with party held not to disqualify him to testify to communication with person since deceased (Rev. Gen. St. 1920, § 2705). The disqualifying interest of the witness, under section 2705, Rev. Gen Stats., must be in the event of the cause itself, and not in the question to be decided. His liability to a like action, or his standing in the same predicament with the party, if the verdict cannot be given as evidence for or against him, is an interest in the question only, and does not exclude him.

In ejectment, mother of defendant, claiming as heir of deceased, sole owner, by common-law marriage, held competent to testify to such marriage (Rev. Gen. St. 1920, § 2705). In an action of ejectment, wherein the plaintiffs claim as heirs at law of one R., by a formal marriage, and the defendant claims as the heir at law of such decedent in that she was his daughter by virtue of a prior, common-law marriage, which had never been dissolved, the mother of the defendant is a competent witness to testify to facts tending to prove the existence of such common-law marriage between herself and R.; she being neither a party to nor interested in the event of the suit, nor a party from, through or under whom such defendant derived any interest or title, by assignment or otherwise, in or to the land in suit, the deceased having been the sole owner of the property at the time of his death, and the defendant's only claim of title being that she acquired the same by inheritance from such deceased.

Purpose of statute relating to interest of witness held to be to enlarge, not to restrict, competency of parties as witnesses; terms of exception in statute relating to competency of parties as witnesses will not be extended to cases not clearly within its terms (Rev. Gen. St. 1920, § 2705). The purpose of section 2705, Rev. Gen. Stats., was to enlarge, not to restrict, the competency of parties as witnesses, and the terms of the exception in the statute will not be extended by judicial construction to cases not clearly within the terms thereof.

National Reporter System volumes, i. e., those of Southern Reporter, containing reports of sister state's Supreme Court decisions, held admissible to prove such state's law (Rev. Gen. St. 1920, §§ 2715, 2716). Where, as in this case, the unwritten or common law of the state of Alabama was invoked in the trial of an action in a court of this state, volumes of the National Reporter System, that is, of the Southern Reporter containing reports of decisions of the Supreme Court of Alabama, showing or tending to show such unwritten or common law, applicable to the case on trial, as recognized and enforced in Alabama, may be admitted as evidence of such law.

To estop tenant to deny landlord's title, relationship of landlord and tenant must first be shown as regards land in question; where evidence as to existence of relationship of landlord and tenant, estopping tenant to deny landlord's title conflicts, such question should be submitted to jury with proper instructions. To give rise to estoppel of tenant to deny his landlord's title, it must first be shown that the relation of landlord and tenant in fact existed between the parties as regards the land in question, and, where the evidence as to the existence of such relationship is in conflict, the question should be submitted to the jury with proper instructions.

COUNSEL

Philip D. Beall and John M. Coe, both of Pensacola, for plaintiff in error.

Watson & Pasco, of Pensacola, for defendants in error.

OPINION

BROWN J.

This was an action of ejectment in the circuit court of Escambia county, wherein the plaintiffs recovered a judgment against the defendant, Francis Madison, to which she took writ of error. The property involved was a house and lot in Pensacola. The plaintiffs, P. H. and M. K. Robinson, claimed title as the sole heirs at law of Robin Robinson, a negro, by a marriage alleged to have been contracted in Dallas County, Alabama, with one Nannie Quarles, on January 25, 1876, proven by certified copy of the marriage license and certificate of the officiating minister; whereas the defendant claimed title as the sole heir at law of Robins Robinson by an alleged prior common-law marriage with one Eliza Washington, which took place in the same county in Alabama, and on the same plantation, Col. Harris Walker's, several years 'after the surrender of the Confederate Army.' The defendant also sought to prove that the mother of the plaintiffs was a white woman, by reason of which it was contended her marriage to Robinson was illegal, and that the plaintiffs were not the legitimate heirs of Rob Robinson. It appears that, immediately after the formal marriage of Robin Robinson to Nannie Quarles, they came to Pensacola and lived there as husband and wife for some 35 years, and that, after the death of Nannie Robinson, Robin Robinson continued to live in that city until his death some several years before the suit was brought. It also appears that Robinson was the owner of the house and lot involved in this case, and other property, at the time of his death, and that Francis Madison had been renting the property sued for from him for a considerable period of time.

At the conclusion of the plaintiffs' testimony, the defendant placed Eliza Washington, the mother of the defendant, upon the stand. Thereupon the plaintiffs stated that they desired to reserve the privilege of objecting to and moving to strike out the testimony of the witness at the conclusion thereof, so as to avoid cutting into the questions and answers. This was agreed to by counsel for the defendant, and allowed by the court.

Eliza Washington testified: That she was married to Robin Robinson when she was 15 or 16 years old, and some three or four years 'after the surrender of the Confederate Army.' That they both lived on Col. Harris Walker's plantation near Selma, Ala., and that the ceremony was performed at her father's house by an old preacher. That he read from the Bible, but she did not remember anything that he said except, 'Salute the bride.' That he asked her if she would take Robinson as her husband, and asked him if he would take her as his wife, and then put their hands together. That they lived together and farmed for about five years during which period they had three children, all of whom died with the exception of the defendant, Francis Madison. That they lived together as man and wife, and so treated each other. That Robin was employed by the white folks to take groceries to Nannie Quarles' mother, who lived about two miles away on her own plantation, and, after one of these trips, Robin disappeared, and so did Nannie. She never heard from him until seven years later. She remained single some 12 or 13 years after he went away, and then married again. That she did not get a divorce from Robin, as they had not obtained any license to marry, and she did not think a divorce was necessary. That Nannie Quarles' mother was known as a white woman, and was treated as such by the white folks.

Thereupon the plaintiffs objected to and moved to strike----

'all the testimony given by the witness Eliza Washington...