
    Dunton v. Keel.
    
      Statutory Action in nature of Ejectment.
    
    1. Exclusion of deed as evidence, or record thereof; presumption in favor of judgment. — When a deed is offered in evidence, or the record thereof, and is excluded, but the ground of objection is not stated, and the paper itself is not set out in the bill of exceptions, this court will presume that it was properly excluded
    2. Proof of title tinder mortgage. — When the defendant in ejectment claims under a conveyance from a mortgagee of the plaintiff, but fails to produce his deed, or otherwise connect himself with the mortgagee’s title, he can not complain of the exclusion of the mortgage as evidence.
    
      3. Proof of identity of lands sued for; general charge on evidence-. When the lands sued for are described in the complaint only by their government numbers and subdivisions, and, the plaintiff producing-no paper title, his witnesses testify to his prior possession of “the upper place” and “the lower place.” not identifying them as the lands sued for, the court is not authorized to give the general charge in his favor, although no objection was made by the defendant to the relevancy or sufficiency of the evidence.
    Appeal from tbe Circuit Court of Jackson.
    Tried before tbe Hon. John B. Tally.
    This action was brought by Moses B. Keel, to recover tbe possession of a tract of land containing 480 acres, wbicli was described in tbe complaint by its government numbers, being subdivisions of sections 17, 32, and 33, in township four (4), range three (3) east, in Jackson county; and was commenced on tbe 21st July, 1890. E. W. Dunton intervened as tbe landlord of tbe tenants in possession, and defended tbe suit on bis own title, issue being joined on tbe plea of not guilty. On tbe trial, tbe plaintiff reserved a bill of exceptions, in which tbe facts are thus stated:
    “The plaintiff introduced R. L. Butler as a witness, who testified that be bad known plaintiff six or seven years; that plaintiff was in possession of tbe upper place, from tbe time witness first knew him until defendant entered, and bad been in possession of tbe lower place ever since be bought tbe same from Silas Kennamer four or five years ago. Plaintiff then introduced John Wilson as a witness, who testified, that plaintiff bad been in possession of tbe upper place about fifteen years, and of tbe lower place four or five years; that be got' tbe lower place from Silas Kennamer, part of tbe up , >01'place from tbe widow M., and tbe other part from bis (plaintiff’s) father’s estate. Witness did not know what was tbe reasonable rental value of tbe lands; bad beard that Jenkins paid about $300 rent for tbe upper place; did not know tbe rental value of tbe lower place; that tbe annual rent of tbe upper place was worth $300, but be did not know what tbe lower place was worth. Defendant then offered in evidence tbe record of a deed to him from tbe American Mortgaye Company of Scotland, Limited. Plaintiff objected to said record as evidence; which objection tbe court sustained, and tbe defendant excepted. Defendant offered in evidence, also, tbe record of a mortgage executed by plaintiff to said American Mortgage Company of Scotland, which is in book of mortgages No. 14, pp. 531-34, and is as follows,” setting it out: “Plaintiff objected to said record as evidence, and moved to exclude tbe same. Thereupon, defendant’s counsel stated to tbe court tbat defendant claimed through said mortgage, under a deed the record of which was offered above, and that the original mortgage was not in the custody or control of the defendant. The court sustained the objection, and excluded the record of said mortgage; and defendant excepted. This being all the evidence, the court charged the jury, on request, that they must find a verdict for the plaintiff, if they believed the evidence.” The defendant excepted to this charge, and he here assigns it as error, together with the rulings on evidence above stated.
    MartiN & Bouldin, for appellant.
    (1.) The record of the mortgage was improperly excluded as evidence. It v/as a necessary link, in fact the first link, in the chain of the defendant’s title; and he could not make out his defense without it. It was not in his possession, but was presumptively in the possession of the mortgagee. — Florence Land Co. v. Warren, 91 Ala. 533. The record was legal evidence of the mortgage its.elf. — Code, § 1798; White v. Hutchings, 40 Ala. 253 ; Huckabee v. Sheppard, 75 Ala. 342. (2.) There was no evidence identifying the “upper place” and the “lower place,” mentioned hy the witnesses, as the lands sued for, nor even showing that they were in Jackson county. The evidence, for this reason, did not authorize the general charge.' — Aciden v. Hickman, 60 Ala. 568; cases cited in 1 Brick. Digest, 871-2, §§ 964-5 ; 3 11. 434, §§ 405, 411-12, 414, 417.
    J. E. Brow, contra.
    
    (1.) The record of the deed was properly excluded as evidence, because the absence of the deed itself was not accounted for; and the record of the mortgage was properly excluded, because the plaintiff did not connect himself with it. — 47 Ala. 175, 637. (2.) The lands were described in the complaint by their government numbers and subdivisions; and they consist, as this court must judicially know, of two tracts of 240 acres each, 'ocated on the river, and two miles apart. — Mooney v. Turdpseed,, 50 Ala. 499; Walker v. Allen, 72 Ala. 455. The complaint was before the jury, and the testimony was referable to it. If the “upper place” and the “lower place,” mentioned by the witnesses, were not the lands sued for, the evidence was entirely irrelevant; and its relevancy was admitted by the failure to object to it.
   ' WALKER, J.

This is a statutory action in tbe nature of ejectment for tbe recovery of tbe possession of land and damages for tbe detention thereof. Tbe plaintiff undertook to sustain bis case by proof of prior actual possession under a claim of ownership. Tbe defendant offered in evidence tbe record of a deed to himself from tbe American Mortgage Company of Scotland, Limited, and also tbe record of a mortgage from tbe plaintiff and bis wife to that company. In offering tbe record of tbe mortgage tbe defendant’s counsel stated that be claimed through said mortgage under tbe deed which bad been already offered in evidence. On objection interposed by tbe plaintiff, tbe court excluded tbe records of both tbe deed and tbe mortgage. Tbe record of tbe deed which was excluded is not copied in tbe bill of exceptions. We are not informed in any way of its contents, nor does tbe record disclose upon what ground.it was excluded. In tbe absence of any showing to tbe contrary, we must presume that it was properly excluded. — Hutcheson v. Powell, 92 Ala. 619; Beadle v. Davidson, 75 Ala. 494.

Tbe exclusion of the deed left tbe defendant in tbe position of- failing to connect himself with tbe title under which be claimed. Tbe deed was tbe link connecting him with tbe title conveyed by tbe mortgage. Tbe defendant could not set up tbe outstanding title of tbe mortgage without connecting himself with it (Allen v. Kellam, 69 Ala. 442), and could not be injured by the exclusion of a mortgage to á third party standing in no relation of privity with him. His privity with tbe mortgagee, or tbe title conveyed by tbe mortgage, was proposed to be shown only by the deed, tbe proof of which bad already been rejected, and properly so, we must presume. Tbe mortgage, without tbe deed, would not tend to show tbe record title under which defendant proposed to bold tbe land, and no injury could result to him from tbe exclusion of tbe 'mortgage alone, as be failed in tbe proof of tbe deed. Eor this reason there can not be a reversal because of that ruling, however insufficient may have been tbe grounds suggested in support of it.

Tbe complaint describes tbe lands sued for only by tbe numbers of section, township and range. Tbe plaintiff offered evidence only as to bis prior possession of “the upper place” and “tbe lower place,” and as to tbe rental value thereof. All the evidence is set out in tbe bill of exceptions, and we find nothing at all in tbe record tending to show that tbe lands referred to by tbe witnesses are tbe identical lands described in tbe complaint. Tbe witnesses do not in any way locate tbe lands of wbicb tbe speak. It is not made to appear tbat there is any correspondence between tbe proof and tbe plaintiff’s pleading. For auglit tbat appears tbe testimony may bave referred to other lands than those sued for. It certainly can not be affirmed tbat tbe proof clearly showed tbat tbe plaintiff was entitled to, or bad bad prior possession of tbe land described in tbe complaint. Tbe Circuit Court erred in giving tbe general charge in favor of tbe plaintiff. To say the least of it, tbe evidence was not sufficiently clear and free from doubt to warrant tbat charge. — Tabler v. Sheffield Land, Iron & Goal Co., 87 Ala. 305; Alabama Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329.

Reversed and remanded.  