Inge v. Johnston; and Inge v. Johnston

Inge v. Johnston, and Inge v. Johnston. Appeals from the Circuit Court of Hale. Tried before the Hon. JohN Moore. Gregory L. & .H. T. Smith, for appellants. Seay & DeGraeeeNreid and Tutwiler & JoNes, contra. ■ These were statutory action of ejectment for the.recovery of land, prosecuted separately by Georgia and Hanson Johnston, respectively. The facts in the two cases are the same, and they were submitted together. The plaintiffs claimed title to. the land under the will of Thomas M. Johnston, deceased; and the only question reviewed on the present appeal was the sufficiency of the proof of the will of Thomas M. Johnston, deceased, as a muniment of plaintiffs ’ title, which was essential to their rights of recovery. In reference to the introduction of this instrument as evidence, the facts were as follows : Upon the plaintiffs’ attorney stating that the original will was locked up in the safe in the probate judge’s office, but that he had the will book belonging to the probate office, in which the will was recorded, the attorney for the defendant said that he was willing to treat the copy contained in said will book “as the original, and make no objection to it.” There was no evidence that the will had been probated. This court, in reviewing the cause, held, that what was said by the defendants’ attorney was only a consent to treat the copy in the book as the original paper, and was not a pretermission of the proof of probate, or a waiver of any right he otherwise had, to question the efficacy of the paper as a muniment of title, in the absence of such proof; and that the will, without proof of its having been probated in the court of probate, vested no title in the plaintiffs to the land sued for. — Desribes v. Wilmer, 69 Ala. 28; Jordan v. Jordan, 65 Ala. 305; Hawkins v. Dumas, 41 Ala. 391. It was, therefore, held that the court erred in giving the general affirmative charge in favor of the plaintiff, and the judgment in their favor was reversed, and the cause remanded. [MAJORITY — MoClellaN, J.] Opinion by MoClellaN, J. Habalson, J., not sitting.