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turbulent, and dangerous man. In connection with this evidence it was proposed by the defendant to prove that a short time prior to the time of the alleged charge the said Willingham had shot two men in the neighborhood, one of whom was his brother. This evidence was excluded by the court, un motion of the state, and properly so, particular acts of violence not being admissible to prove general character. Jones v. State, 76 Ala. 9. The effort to impeach the witness on the direct examination should have confined the inquiry to his general character, or his general character for truth and veracity. It was not competent to restrict the inquiry merely to character "for honesty." Holland v. Barnes, 53 Ala. 83; Jackson v. State, 77 Ala. 18. The court did not err in its rulings on the evidence bearing on this question. To justify the defen 'ant in carrying the pistol concealed he must have had good reason to apprehe, id an attack on his person; and it was competent for the jury to consider the dangerous character of one who had threatened him, as a fact tending to show reasonable grounds for such apprehension. But the unfounded belief of defendant that he was in danger of being attacked, not supported by reasonable grounds, would neither excuse nor mitigate the offense of carrying a weapon concealed about his person. The first charge asked, and refused by the court, was properly refused, because in its first alternative phrase it predicated an acquittal upon the defendant's mere belief that he was in danger of attack, and not upon the fact that he had good reason to apprehend it. The second charge was properly refused for two reasons, if not more. It is based upon the testimony of certain witnesses, whose names do not appear in the bill of exceptions, and is therefore abstract; and it infringes the prerogative of the jury in asserting the degree of weight to which this testimony is entitled. Judgment affirmed.


(Supreme Coart of Alabama. December 7, 1888.) 1. EJECTMENT-DEFENSES-ADVERSE Possession-ContinuITY.

Where defendant in ejectment relies only on adverse possession, it may be shown that the continuity of his possession was broken by dispossession under the judg

ment of a court of competent jurisdiction, in an action of unlawful detainer. 1 2. SAME-TITLE TO SUPPORT-EVIDENCE OF DISCLAIMER.

Where, in ejectment, both parties claimed through one W., and it was incumbent upon plaintiff, who claimed title by adverse posssession, to show a disavowal by his grantor of W.'s title, and that notice of such disclaimer was brought to W., it was error for the court to charge, without reference to such disclaimer and notice, that if plaintiff, and those under whom he acquired possession, had, for the statutory period before suit, been in actual, open possession, under claim of title, this would authorize a verdict for plaintiff, unless the defendant had shown a better title. Appeal from circuit court, Tallapoosa county; LEROY F. Box, Judge.

An action by C. J. Truitt against Williamı Bishop, to recover the possession of a tract of land, with damages for its detention. The plaintiff had a verdict and judgment. The defendant assigns error.

H. A. Garrett and N. D. Denson, for appellant. W. D. Bulger, for appellee.

CLOPTON, J. The plaintiff originally acquired possession under a purchase from Busbee, who obtained his possession by purchase from Elisha Wood. Defendant claims title under a sale and conveyance from Norman, to whom Elisha Wood sold and conveyed the land. Both parties claiming from and through the same person, ne her is bound to prove the nature or quality of Wood's title. Pollard v. Cocke, 19 Ala. 188. To a proper understanding and

That adverse possession must be continuous, in order to confer title, see Boone v. Hulsey, (Tex.) 9 S. W. Rep. 5:31. See, also, on the subject of title by adverse possession in general, note, Id.; Hockmoth v. Des Grands Champ, (Mich.), 39 N. W. Rep. 737, and note; Kerns v. Dean, (Cal.) 19 Pac. Rep. $17, and cases cited.

consideration of the questions involved in the case, it should be observed that the plaintiff founds his right to recover possession of the land sued for solely on adverse possession, under such circumstances and for such length of time as vests in him a right of entry. In the statutory real action, as in ejectment, when the plaintiff relies on adverse possession, it is incumbent on him to establish all the essential elements-open, notorious, under claim of right, and continuous for the period prescribed by the statute—as a bar to entry by the true owner. As the plaintiff did not himself hold possession for the requisito time, it is necessary to connect his possession with that of a preceding adverse holder. It was attempted to connect it with that of Busbee, and hence the character of the latter's possession is involved. Possession, to be adverse, must be hostile in its inception, or, if originally taken in subservience to the rightful title, there must be a change of its character. An entry will not be presumed to be adverse to the rightful owner. If originally acquired and taken in privity with the true owner, the presumption is that it was taken and continued in recognition of and subordinate to his title; and this pre sumption continues through the successive possessions of different occupants. In such case, mere continuance in possession, however open and notorious, and however continuous, never ripens into an adverse possession. To make such possession adverse to the true owner, there must be a distinct disavowal of his title, and the assertion of a hostile claim, which must be brought home to him; otherwise, he has a right to presume that the possession is continued in the same manner, and by the same right, under which it was originally taken. Hart v. Kendall, 82 Ala. 144, 3 South. Rep. 41. The plaintiff does not claim or pretend that Wood made a conveyance to Busbee, or that the latter had paid the purchase money. The only reasonable inference from the evidence is that the contract of purchase rested in parol, and was executory in its character. Without a conveyance, or the payment of the purchase money, or a disavowal of Wood's title, and the assertion of a claim by Busbee in his own right, his possession will not be regarded adverse to Wood. Walker v. Crawford, 70 Ala. 567. The court instructed the jury that if the plaintiff, and those under and from whom he acquired possession, had, for a period of more than 10 years before the suit was brought, been in actual, uninterrupted, open, notorious, adverse possession under claim of title, and exercising open, notorious acts of ownership, this would authorize a verdict for the plaintiff, unless the defendant had shown a better title. As the case is presented by the evidence, it was incumbent on the plaintiff to establish adverse possession against Wood, and those claiming under him by derivative conveyances. When referred to the evidence, the charge ignores the fact that both plaintiff and defendant claim to derive title from Wood, and withdraws from the consideration of the jury the evidence showing the manner in which Busbee originally entered into possession, the necessity of a disclaimer of Wood's title, and of such disclaimer being brought to his notice. Under the charge, the jury would have been authorized to return a verdict for the plaintiff without reference to and in the absence of proof of such disclaimer and notice. In order to disprove the claim of adverse possession prior to the commencement of the suit, defendant introduced in evidence a transcript of the proceedings in an action of unlawful detainer, instituted by Norman, from whom he derived title, against the plaintiff, in March, 1885, in which a judgment was rendered by the circuit court that Norman recover possession of the land from plaintiff. The judgment was rendered in April, 1886. The plaintiff was dispossessed, and Norman put into possession, before the commencement of this action. Unlawful detainer, as defined by the statute, is “when one who has lawfully entered into possession of lands or tenements, after the termination of his possessory interest, refuses, on demand in writing, to deliver possession thereof to any one lawfully entitled thereto, his agent or attorney.” Code 1886, 8 3381. It is a possessory action, the issues in which necessarily involve the character and extent of the possessory interest of plaintiff, its termination, and the right of Norman to possession. The adverse possession on which plaintiff relies to recover in the present action was involved in the issues, and would, if shown, have constituted a full defense to the action of unlawful detainer. Right to possession is essential to the maintenance of the statutory real action. When the plaintiff relies only on an adverse possession, it may be shown in defense that he had voluntarily abandoned such possession before the commencement of the suit. On the same principle, it may be shown that the continuity of his possession was broken by dispossession under the judgment of a court of competent jurisdiction in a suit in which the judgment is conclusive as to his right of possession, and its character and extent are determined adversely to the plaintiff. Though in an action of unlawful detainer the title to the land cannot be inquired into, a judgment in such action is an adjudication that the defendant therein did not have and hold adverse possession at the time the action was instituted, that his possessory interest, whatever may be its character and extent, had terminated, and that the plaintiff therein is lawfully entitled to possession. Brady v. Huff, 75 Ala. 80. The judgment in the action of unlawful detainer is conclusive on plaintiff, that he did not hold adverse possession against Norman, and those claiming under him, prior to, and at the time of, the institution of the action of unlawful detainer. As the plaintiff does not show any other right or title, the affirmative charge in favor of the defendant should have been given. Reversed and remanded.


(Supreme Court of Alabuma. December 17, 1888.) EXECUTORS AND ADMINISTRATORS-ASSETS-REAL PROPERTY.

The word "assets, "as used in Code Ala. $ 2013, authorizing the grant of letters of administration on the estates of non-residents who die leaving assets, includes land situate in the county where the administration is granted; and the death of an alien dying abroad, and leaving only land in Alabama, will uphold the jurisdiction of the probate court of the county in which the land is situated. Appeal froin probate court, Montgomery county; F. C. RANDOLPH, Judge.

Petition by Antoni Guily to revoke letters of administration granted to John B. Nicrosi. The prayer of the petition was granted, and Nicrosi appeals.

Jere N. Williams, for appellant. John G. Winter, for appellee.

STONE, C. J. The question presented by this record is whether administration on the estate of Jeanette Guily was committed to Nicrosi improvidently. On petition of Antoni Guily, surviving husband of Jeanette, the probate court revoked the letter of administration previously granted to Nicrosi. From that order the present appeal is prosecuted. The record shows the following state of facts: Jeanette, the decedent, was of foreign birth, but resided for many years in the state of Alabama. Many years ago she intermarried with Antoni Gaily, who was also a foreigner by birth, but had become a naturalized citizen of the United States. They resided together in Montgomery, Ala., until about the year 1885, when they returned to the kingdom of Belgium, in Europe, where Jeanette soon afterwards died intestate, leaving no lineal descendants, but leaving brothers and sisters, who were and are foreigners. Antoni, the husband, also survives. It is not shown whether their return to Europe was intended to be permanent or temporary, nor is it shown whether the said Antoni has ever returned to the United States. During their coverture Jeanette purchased a lot of land in the city of Montgomery, took the title in her own name, and to her sole and separate use, and died the owner of the property. It is shown that she had no other property in Alabama, unless soine rents were due her, of which no proof is made. Leaving for

The ques

Europe, Jeanette left the property in the hands of Nicrosi as agent, who acted as such until her death. The lot was in possession of one who had been tenant, who held over, and claimed to have acquired title at tax sale. tion is whether, under the facts of this case, the lot was assets of the said Jeanette within the jurisdiction of the probate court of Montgomery county sufficient to give to that court jurisdiction to grant administration on her estate. In the absence of all statutory regulations enabling aliens to own, transmit, or inherit property, the law does not, ex proprio vigore, divest the title of such alien to property purchased by him. It can be defeated and vested in the sovereignty by escheat, only by the successful prosecution of proceedings instituted therefor. Harley v. State, 40 Ala. 689. And, under ordinary circumstances, the ownership of real estate alone supplies the elementof assets within the jurisdiction, so as to authorize administration on the estate of such deceased owner. Bishop v. Lalouette, 67 Ala. 197. Nicrosi was sought to be removed, and was removed, from the trust for no alleged unfitness to perform its duties. The sole ground relied on was that, under the circumstances of this case, the court had no jurisdiction to appoint an administrator, and the same argument is renewed before us. We hold that the probate court erred in the order revoking Nicrosi's appointment, and we rest our ruling partly on chapter 1, tit. 7, pt. 2, Code 1876, commencing with section 2851; Code 1886, $ 1936 et seq. The provisions of that chapter clearly show that, in cases of alien decedents, administration is proper, if not imperatively called for. It may be that, without judicial contestation, it could not be known who, if any one, was entitled to inherit from the said Jeanette. If no one had made application for the appointment, and the facts had been brought to the notice of the judge of probate, we will not say it would not have become his duty to appoint a personal representative to carry out the provisions of the law, whether applied for or not. In cases of alleged ground for escheat, a personal representative would seem to be a necessity; for the statute imposes duties, which no one else is authorized to perform. But we do not place our ruling solely or mainly on this ground. All property needs some one interested and authorized to look after its conservation. Real estate, particularly a house and lot in a city, such as is shown to be the subject of contention in this case, would suffer great detriment if left entirely to itself. Taxes must be paid, insurance kept up, repairs made when needed, and it is equally a protection to the property and a profit to the ownei that it be kept occupied and yielding rent. We approve and reatfirm the doctrine declared in Bishop v. Lalouette, 67 Ala. 197, that the word "assets,” as used in the statute, (Code 1886, 8 2013) authorizing the grant of letters of administration on the estates of non-residents who die leaving assets, includes lands situated in the county where the administration is granted; and that the death of an alien dying abroad, and leaving land only in Alabama, will uphold the jurisdiction of the probate court of the county in which the land is situated to grant administration on such estate. The judgment of the probate court is reversed, and an order made directing the probate court to dismiss Antoni Guily's petition. Reversed and remanded.

SAYRE 0. WILSON et al.

(Supreme Court of Alabama. December 11, 1888.) 1. PLEADING-COMPLAINT-SUIT FOR COMMISSIONS.

In an action by real-estate brokers to recover commissions, an averment that plaintiffs found purchasers at the prices fixed by defendant, and that he refused to consummate the sale, is fatally defective, on demurrer, in not alleging that such

purchasers were able, ready, and willing to carry out the sale. 2. FACTORS AND BROKERS-RIGHT TO COMMISSION_VALIDITY OF SALE.

The fact that a contract made with a proposed purchaser is voidable under the statute of frauds is no defense to an action by the brokers against the vendor for commissions, where the purchaser has not shown any intention to take advantage of the statute.


A letter of defendant, fixing the terms of sale, and expressly referring to an inclosed plat, and to the prices marked thereon, made the plat and the prices affixed

a part of the contract, the same as if embodied in the letter itself. 4. FACTORS AND BROKER8–CONTRACT FOR COMMISSION-EVIDENCE-PAROL AGREEMENT.

Where the correspondence by which plaintiffs were employed does not cover the question of compensation, a prior oral agreement as to the commissions to be

charged may be shown. 5. Same-EvidencE-PAROL TO VARY WRITING.

But where the contract by correspondence refers to a sale of lots at specified prices and terms, evidence of a prior oral agreement that the sales should be made subject to defendant's approval, and that the deeds should contain certain condi


An agreement by plaintiffs, at defendant's request, that a certain lot might be withdrawn from market, made after they had effected a sale of it, and under the mistaken belief that the lot proposed to be withdrawn was a different one, would

not prevent them from recovering commissions for such sale. 7. SAME-AUTHORITY TO SELL-REVOCATION.

Authority to sell land cannot be revoked by a letter mailed to the brokers, but

never received by them. 8. SAME-EVIDENCE OF PARTNER.

The testimony of one of two brokers, who were partners in the business, that the firm never received the alleged letter revoking their authority, was competent to

show that neither he nor his partner had received it. 9. SAME-RATE OF COMMISSION-CustOY AND Usage.

In the absence of an agreement for commissions, established and customary charges for like services in the community are competent evidence to prove what is a fair and reasonable charge. Appeal from circuit court, Montgomery county; John P. HUBBARD, Judge.

This action was brought by the appellees, Wilson & Ingram, against the appellant, C. L. Sayre, to recover commissions alleged to be due them as realestate agents, for the sale of certain real estate in the city of Birmingham. The complaint was in the following language: “The plaintiffs claim of the defendant two hundred and fifty dollars

for negotiating the sale of two lots in the city of Birmingham, Alabama, [here follows a description of the lots and to whom sold.] Plaintiffs aver that they are real-estate brokers in said city of Birmingham, Alabama, and defendant requested them, on or before the 27th day of March, 1886, to sell certain property of his in said city, among other lots those above described, agreeing to pay them for such service all over eleven hundred dollars that might be obtained froun the sale of the above first described lot, and five percent. of the purchase money of the above second described lot, provided such last described lot sold for $3,000 or upwards. Plaintiffs further aver that they offered such lots for sale, and found purchasers therefor, at the price of twelve hundred dollars for the first described lot, and three thousand dollars for the second described lot; and that, after they had found purchasers for them as aforesaid, defendant refused to carry out and conform to the sales so made by them of said lots for him at his request as aforesaid, to the damage of plaintiffs aforesaid." Then follow further counts for the same amount due on account, and for work and labor done. Defendant demurred to the first count of the complaint on the ground that it did not allege that the purchasers found were ready, able, and willing to carry out the alleged purchases, and that the complaint did not allege that defendant wrongfully refused to carry out the purchases. The court overruled the demurrer, to which ruling defendant excepted, and then pleaded, in short, by consent, the general issue; non assumpsit; and the statute of frauds. The contract, which was the foundation of the action, was made principally by correspondence. One of the plaintiffs, J. T. Wilson, testitied as to this correspondence, and introduced such letters as he had in evidence. There was evidence tending to show that defendant had several lots in the city of Birmingham, and upon application by plaintiffs to sell the same for



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