Riley v. Fletcher

• Decision Date: 18 December 1913
• Citation: 185 Ala. 570,64 So. 85
• Parties: RILEY v. FLETCHER.
• Court: Alabama Supreme Court

64 So. 85

185 Ala. 570

RILEY v. FLETCHER.

Supreme Court of Alabama

December 18, 1913

Appeal from Circuit Court, Covington County; H.A. Pearce, Judge.

Ejectment by M.M. Riley against J.H. Fletcher. Judgment for defendant and plaintiff appeals. Affirmed.

The evidence complained of sufficiently appears from the opinion. The following charges were refused the plaintiff:

"(2) The court charges the jury that, if you are reasonably satisfied from all the evidence that plaintiff had prior possession of the land in controversy, that is, actual possession of it before and at the time the defendant entered upon it, that was prima facie evidence of plaintiff's title, and, no presumption being indulged that title is in United States or another, on proof of actual possession of the land by the plaintiff under color of title when defendant entered, and prior actual possession of plaintiff's grantor that plaintiff is entitled to recover, notwithstanding defendant had color of title.

"(3) If you are reasonably satisfied from the evidence that J.D Henderson was not in the actual possession of the land involved in this suit at the time he (J.D. Henderson) made the deed to defendant A.H. Fletcher and introduced in evidence in this case, then your verdict should be for the plaintiff for the land sued for.

"(4) The court charges the jury that, if you are reasonably satisfied from the evidence that the plaintiff was in the actual, open, notorious, exclusive, adverse possession of the land sued for at the time defendant entered upon it, then you must find for the plaintiff for the land sued for."

The following charge was given for defendant: "If you believe the evidence in this case, M.H. Riley was not in possession of the land involved in this suit a sufficient length of time in order for his possession to have given him title."

Mayfield, J., dissenting.

James F. Jones, of Evergreen, for appellant.

Foster & Samford, of Troy, for appellee.

DE GRAFFENRIED, J.

The bill of exceptions in this case contains the following: "S.H. Gillis was next introduced as a witness for the plaintiff and testified in substance as follows: 'I was present at the trial of this case the last time it was tried in the circuit court. I remember Mr. Dock Jordan who testified in this case.' Question: 'Have you read what that record there (points to the old bill of exceptions) states as to his testimony?' Answer: 'I have, and I recall substantially what Mr. Jordan testified to on the trial. That record sets out substantially what he said on that trial; what is recorded there in that bill of exceptions.' It was admitted that this Mr. Dock Jordan was dead. Plaintiff then offered to introduce this testimony of said Dock Jordan on the former trial of this cause as set out in said bill of exceptions at the spring term, 1907, which testimony of said Dock Jordan is in words and figures as follows: 'Dock Jordan being called by plaintiff says: "Knew Morgan H. Riley, deceased, in his lifetime; knew where he lived and knew the land in question. Morgan H. Riley died in 1856; was in possession of the land at the time of his death, having gone into possession of the land in 1853. A portion of the Riley old farm was on the land in question. I do not know who went into possession of the land in question after the death of Morgan H. Riley; it did not join the Morgan H. Riley homestead. Have seen W.J. Riley on the land, and saw him hauling corn across it, but cannot say that I ever saw him on the land after his father's death, and don't know who was in possession after W.J. Riley and Morgan H. Riley died; and do not know of any act of ownership having been exercised over said lands after Morgan H. Riley died. The lands are wild lands and have not been cultivated since the Civil War. I live near it, and have ridden over it frequently, and did not see any act of ownership by anyone." ' But the defendant here objected to said testimony of Dock Jordan being introduced in evidence on this trial, which objection the court sustained, and to this ruling of the court the plaintiff duly and legally excepted.'' We direct attention to the fact that the above witness testified positively that he recalled substantially what the deceased witness Jordan testified to on the former trial, and that the "record sets out substantially what he said on that trial." In other words, the witness, from his own unaided recollection, testified that the record was, in substance, the testimony of the deceased witness on the former trial. This being true, the witness Gillis had the right to use the memorandum for the purpose of refreshing his recollection as to the testimony of the witness Jordan given on the former trial. "That the paper was not written by the witness himself is no objection." 1 Greenleaf on Evidence (16th Ed.) p. 543, § 439c. "Again, it is equally immaterial that the paper was not made at or about the time of the event; for it is not used as a record of a past memory (as is the case in section 439b), and its power to stimulate and revive the memory by the allusions which it contains must be precisely the same whether it was made at the time or not." 1 Greenleaf on Ev. (16th Ed.) p. 543, § 439c.

The above rules, however, did not render the memorandum itself admissible as evidence unless called for by the opposite party. In this case Gillis had the right, under his evidence as to the knowledge which he had as to the correctness of the memorandum, to use that memorandum while testifying as a witness. The party against whom he was testifying had the right to introduce that memorandum in evidence for the purpose of letting the jury say whether the memorandum contained sufficient data to fortify or aid the recollection of the witness. Birmingham Railway Light & Power Co. v. Seaborn, 168 Ala. 664, 53 So. 241; Acklen v. Hickman, 63 Ala. 498, 35 Am.Rep. 54.

The leading case in this state upon the subject now under discussion, is the above-cited case of Acklen v. Hickman. The rules announced in that case have been by this court frequently reaffirmed, and in the above case of Birmingham Railway Light & Power Co. v. Seaborn the language used by this court in said case of Acklen v. Hickman was quoted with approval.

In the case of Torrey v. Burney, 113 Ala. 496, 21 So. 348, this court used language which is at least in apparent conflict with the rule announced in the above case of Acklen v. Hickman, for in that case this court said, under circumstances somewhat similar to the circumstances in the instant case, that: "We think the rule fully complied with and that both the memorandum and the testimony were competent." The conflict between the cases, however, is not so much an actual as an apparent conflict. In the case of Torrey v. Burney, supra, the witness was allowed to use the memorandum and read from it. The memorandum was not itself introduced in evidence, and this court simply held that the writing was competent as a memorandum.

We have been led to make the above observations for the purpose of giving emphasis to our opinion that in this...