Stevenson v. Moody

Stevenson v. Moody. Statutory Action in nature of Ejectment. 1. Proof of partition.■ — As proving a partition of land by agreement between two sisters, a subsequent declaration and claim of exemption by one of them, to the part of which she was in possession, would be admissible as evidence against her, as tending to show that she adopted and acted on the partition. 2. Record proof of declaration and claim of exemption. — A declaration and claim of exemption, filed in the office of the probate judge, may be proved by a transcript properly certified, but not by the record itself. 3. General exception to several charges given or refused. — An exception reserved in these words, “The following charges were given by the court for plaintiff, and duly excepted to by defendant;” or, “The following charges were asked in writing by defendant, and refused, to which defendant duly excepted,” is too general and indefinite, and does not show a specific exception as to each charge.' Appeal from tbe Circuit Court of Pike. Tried, before tbe Hon. John P. Hubbard. This action was brought by Irby Moody and Jane Moody, husband and wife, against Henry Stevenson and Julia Stevenson, also husband and wife, to recover tbe possession of a tract of land containing one hundred and forty acres, which was particularly described; and was commenced on tbe 3d March, 1887. Each party claimed under a deed from J. C. Kindred, who was tbe father of Mrs. Moody and Mrs. Stevenson. The deed to tbe plaintiffs from said J, 0. Kindred, which they offered in evidence on the trial, “was duly executed on the 3d September, 1875, and was in consideration of love and affection;” and it conveyed “the lands in controversy, with other lands.” The defendants claimed that said J. C. Kindred, in 1870, conveyed a tract of land containing two hundred and eighty acres, one half of which was the land here in controversy, and the other half was in the possession of the plaintiffs, to his two daughters Jane and Julia, who were then unmarried; and that they afterwards divided the land between them by agreement, each taking one half. Kindred’s deed to his two daughters was not produced, having been burned or destroyed, as the proof showed; and Mrs. Stevenson testified that this was done “ against her wish and consent,” while Mrs. Moody testified that it was cancelled and destroyed by agreement between them. As to the consideration of this deed, Mrs. Moody testified, that it was made by said J. C. Kindred “to avoid a claim upon which he was at that time sued;” but Mrs. Stevenson testified, that their father, being very much embarrassed in his pecuniary affairs, conveyed the land to them on their agreement “to work and pay his debts,”'and that they did so. Mrs. Moody testified, also, “that she never entered into any contract for a division of the land between her and the said Julia, nor was the land ever divided;” while Mrs. Stevenson thus testified: “In the year 1873, she and the said Jane (her sister) made a contract to divide the said land, and which was accordingly done; and she (the said Julia Stevenson) then took possession of her part, which is the land in controversy, and has been ever since in the open, notorious possession of said land, claiming title to the same under said deed.” “The defendants offered in evidence the following declaration of exemption by Jane Moody, from the record of -exemptions of the Probate Court of said county; which the court refused to admit, and to which the defendants duly excepted.” This declaration and claim of exemption, as here set out in the bill of exceptions, claims certain real and personal property, including one hundred and forty acres of land; and to it is appended an affidavit subscribed by Mrs. Moody, before the clerk of the probate judge, dated June 24th, 1878. Exceptions were also reserved by the defendants to charges given, and to the refusal of charges asked, which are stated: “The following written charges were given by the court for plaintiffs, and duly excepted to by defendants;” “The following charges in writing were asked by defendants, and refused by the court, to which refusal defendants duly excepted.” The several rulings to which, as stated, exceptions were reserved, are now assigned as error. P. O. Harper., for appellants. M. N. Carlisle, contra. [MAJORITY — CLOPTON, J.] CLOPTON, J. The declaration of exemptions would have been admissible in evidence, as an admission by Jane Moody, one of the plaintiffs, that she adopted and acted upon the alleged partition, and claimed the lands allotted to her, if proof had been made that she signed or verified the declaration, or a properly certified transcript of the record of the Probate Court had been offered. The bill of exceptions, which purports to set out all the evidence, fails to show that such proof was made or proposed, or that such transcript was offered. We can not make presumptions against the statements of the record, to put the court in error. Though there may be error in some of the charges given, and in the refusal to give some of those requested by the defendants, the exceptions, being taken in mass, are too general to avail appellants. The instructions given and refused are not properly presented for consideration. — Bedwell v. Bedwell, 77 Ala. 587, where the exceptions are taken in substantially the same language. Affirmed.