Roy v. F. M. Martin & Son

81 So. 142, 16 Ala. App. 650, 1919 Ala. App. LEXIS 8

• Court: Alabama Court of Appeals
• Decided: February 4, 1919
• Docket: 5 Div. 272.
• Status: Published

Opinion

SAMFORD, J.

[1] We are of the opinion that the statutory right of redemption is an incumbrance on the land, within the meaning of a covenant against incumbrances, and that any effort on our part to further define the meaning of the term would be a work of supererogation. Tuskegee Land & Security Co. v. Birmingham Realty Co., 161 Ala. 556, 49 South. 378, 23 L. R. A. (N. S.) 992; 7 R. C. L. p. 1134. It follows that the demurrer to count 1 was properly overruled.

The next insistence of appellant is that the court erred in permitting appellee to introduce in evidence over his objection the record of the deed from J. D. Roy, appellant, to Essie R. Reese, when she exercised her statutory right of redemption to the lands in question. The grounds of objection were two, but only one ground is insisted upon, and that is that the record of the deed was not the best, evidence, because there was no evidence, other than the presumptions arising from the record of the deed itself, that plaintiff did not have possession or control of the original deed. The act of the Regislature (Acts 1909,' p. 14) amendatory of section 3374 of the Code of 1907, provides that:

“If it appears to the court that the original conveyance has been lost or destroyed, or that the party offering a transcript had not the custody or control thereof, the court must receive the transcript, duly certified,” etc.

[2] It has been so often decided that, where a certified copy of the record is admissible, the record itself is admissible. It will not be necessary to discuss that point. The deed in this case was made from Roy to Reese, the appellee was not a party to it, and had no right to its custody or control, nor was there in the evidence any fact tending to show that the plaintiff ever had the custody or control of this deed. In the absence of proof to the contrary, the law presumes that Reese, and not the plaintiffs, had the custody of the deed from Roy- to Reese, and hence, under the statute above referred to, the record of. the deed or a certified copy thereof was admissible, in evidence.

[3] The only other assignment of error mentioned in the brief of appellant is the action of the court in giving the general affirmative charge as requested by the plaintiffs. All that appellant says with reference to this assignment is as follows:

“The appellant insists that the circuit court erred in giving the affirmative charge for plaintiffs as set forth in the statement of facts.”

Under the uniform rulings of this court, this amounts to a waiver of the point. Pearson v. Adams, 129 Ala. 169, 29 South. 977; Ward v. Hood, 124 Ala. 570, 27 South. 245, 82 Am. St. Rep. 205; Williams v. Spragins, Buck & Co., 102 Ala. 424, 15 South. 247; L. & N. R. R. Co. v. Morgan, 114 Ala. 449, 22 South. 20; Henry v. Hall, 106 Ala. 84, 17 South. 187, 54 Am. St. Rep. 22.

We find no error in the record, and the judgment is affirmed.

Affirmed.