Phillips v. Shotts

Supreme Court of Alabama
Phillips v. Shotts, 195 Ala. 20 (Ala. 1916)
71 So. 94; 1916 Ala. LEXIS 327
Anderson, Mayfield, Somerville, Thomas

Phillips v. Shotts

Opinion of the Court

ANDERSON, C. J.

(1) The errors complained of in the exclusion of certain statements of the defendant, J. R. Phillips, while a witness upon direct examination, if error, was fully cured oy his answers upon cross-examination and which were not ex-iluded.

(2) Assignment of error 2%, as argued in brief, says: “The jourt erred in refusing to allow the witness Hiram Davis to state who was in possession of the land in the year 1909.”

This witness testified that he cultivated the land in dispute the year 1909, and the only objection we find to any of the eviience of this said witness was as to who had the Arnold land that year — quite a different question from the one assigned as srror. Moreover, the undisputed evidence showed that the defendant was in .possesion of the Arnold land at this time, and the exclusion of this evidence, even if it related to the Arnold land instead of the land in dispute, was without injury, as it was merely cumulative of an undisputed fact.

(3,4) We cannot put the trial court in error for failing to sustain a motion to exclude the evidence of the defendant that *22he made a deed to the land to Haley. In the first place, the witness testified to this fact several times, and there seems to have heen no objection whatever at the time, and the motion to exclude this part of the evidence appears not to have been made until the close of all the evidence. If this evidence had been bad, it should have been objected to when the question was asked or when the evidence was given. Moreover, the witness also testified that Haley deeded it back to him, and that he never gave up his possession to Haley, and this evidence was rather beneficial than detrimental to the defendant, as it showed that he was exercising acts of ownership of the land. We have examined all the charges complained of as given for the plaintiff, and find that they are all abstractly correct, and, if they were misleading for not including the possession of the defendant’s tenants or in not tacking the possession of the defendant to others, or in any other respect, they could have all been cleared up by counter charges. Indeed, such charges were given at the request of the defendant.

(5) We do not think that the trial court erred in overruling the motion for a new trial, as there was a conflict in the evidence as to the payment of the mortgage debt, as well as to the defendant’s adverse possession for ten years, as several witnesses testified that the land was not used or cultivated during some of the time of which defendant claimed to have rented it and had some of it cultivated through tenants.

The judgment of the Circuit Court is affirmed.

Affirmed.

Mayfield, Somerville and Thomas, JJ., concur.

Reference

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