Owing to the caption and arrangement of some of the depositions, we were led into error in holding that some of the witnesses were examined in open court, and therefore seen and heard by the trial court, but, as this was not the case, we must, under the statute, pass upon the evidence without any presumption in favor of its conclusion upon the facts.
We repeat, the evidence utterly fails to establish title to the land in the respondent by adverse possession as against the heirs of his father.
As set forth in the original opinion, the proof showed the destruction of the court-house, and as the secondary evidence as to the divorce was not objected to, and the divorce records were not offered in rebuttal, there is at least a presumption that they were destroyed. Indeed, counsel for appellant in brief upon rehearing admits that the divorce records of Franklin county were destroyed when the courthouse was burned. The parties were therefore put to secondary evidence to prove the divorces from wives Nos. 2 and 3, and as formerly stated, the evidence alluded to established a prima facie divorce from each of them and which was not contradicted. Therefore legality of the children by the fourth wife, whom Boyles, Sr., lived with when he died in Tennessee, has been satisfactorily shown and more firmly established by a reconsideration of this record. There is, of course, less proof of the divorce from the Pruett wife, No. 2, than the Powell one, No. 3, but there is evidence tending to show that Boyles, Sr., was divorced from the Pruett wife before marrying Miss Powell, and the respondent himself testified to an expensive and hotly contested divorce suit against his father by wife No. 3, wherein she was granted a divorce, and, had Boyles, Sr., not been divorced from the Pruett wife, who was still living, the marriage with Miss Powell was void, and did not have to be annulled by the chancery court.
It is true, the respondent testified that the Powell wife was given a divorce, but claims that his father was not authorized to remarry. This restraint, however, if it existed, was not extraterritorial and did not invalidate his subsequent marriage in Tennessee. Fuller v. Fuller, 40 Ala. 301; Wilson v. Holt,83 Ala. 528, 3 So. 321, 3 Am. St. Rep. 768, and no Tennessee statute has been produced changing this rule. Morever, the proof shows that both the Pruett and Powell women subsequently remarried and lived with their husbands for years in Franklin or adjoining counties.
The amended bill shows that the Tennessee widow was living and had an interest in the land, and we repeat that her answer shows a sufficient consent to the sale of her dower interest.
Upon a reconsideration of the evidence we are fully persuaded that the trial court did not err to the prejudice of the respondent in holding that the tax and value of the improvements did not exceed the rent and waste.
The rehearing is denied.
SAYRE, GARDNER, and MILLER, JJ., concur. *Page 216