We think that the evidence fully justified the conclusions of the trial court that the appellant, John O. Boyles, had not acquired title to the land by adverse possession, and that he held it as a joint owner with the other heirs of his father. He entered into possession under a power of attorney from his father and as his agent, and continued to so hold until the death of the latter less than 10 years before this bill was filed. Moreover, had the father died more than 10 years before the bill was filed, the proof does not show such a repudiation by appellant, brought to the notice of the other heirs, as would permit his holding to be adverse or hostile to them.
The evidence in this case was partly ore tenus, the trial court saw and heard the witnesses, and the conclusion was like unto the verdict of a jury. Senior v. State, 205 Ala. 337,87 So. 592. We cannot say that the conclusion as to the value of the improvements, the waste, and rents was contrary to the great weight of evidence.
We cannot say that the trial court erred in holding that the present Mrs. Boyles was the lawful widow of James O. Boyles, deceased, and that her children were his legal heirs. There was proof that they married in Tennessee years ago, and continued to live as man and wife until the death of said James O. Boyles. It is suggested by appellant's counsel that this last marriage, however, was invalid because the said Boyles had a living *Page 215 wife, and that the proof does not show a legal separation before entering into the said last marriage. This refers to the third or Powell wife, the present Mrs. Boyles being the fourth wife. There is no record evidence of a divorce from the Powell wife, but Mrs. Lettie McCaig, a sister of the Powell wife, testified:
"He and my sister were divorced. They were divorced at Balgreen. I know that. * * * After James Boyles and my sister were divorced, she married again."
This was not the best evidence of a legal divorce, but it transpired 40 years ago, and there was some evidence that the Franklin courthouse was since burned, and, while there was no proof of the destruction of the divorce records, this evidence was not objected to, and if, as a matter of fact, the records were not destroyed, and failed to disclose a divorce as testified to by the witness, the appellant could have shown this, and, in the absence of an objection to this evidence or a contradiction of same, we think there was shown, prima facie, a legal separation. Same as to wife No. 2.
There was no error in the holding that the present Mrs. Boyles was entitled to dower in the land and in ordering the sale and the ascertainment of the value of her dower interest. It is true the dower cannot be sold for partition in the probate court without the written consent of the widow. Code 1907, § 2647. Nor in chancery. Hamby v. Hamby, 165 Ala. 171,51 So. 732, 138 Am. St. Rep. 23. But we think that the written answer of Mrs. Boyles to the cross-bill (page 12 of the record) is not only a sufficient claim that she has dower in the land, but also operates as a written consent to a sale for division.
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.
On Rehearing.