Ozmore v. Hood & Kiddoo

McCay, Judge. 1. An important question on the trial in this case was the nature of the possession of Thomas Ozmore, from the date of the alleged turning over of this land to his children until he left the state. Was he the tenant of his children, or was he holding in his own right? The plaintiffs insisted that the deed made after the date of the levy was the true time of his settlement with his children, and that their claim to the land then began. The claimant insisted that more than a year before this the settlement had been made, the land in dispute turned over, and that Tilomas Ozmore held possession from then until he left, as the tenant of the children. Was or was it not competent to prove by the sayings of Thomas Ozmore, made during this period and whilst he was in possession, that he was not holding as the tenant of his children, but in his own right? . The Code, section 3774, provides that the “dec [118] larations of a person in possession of land in favor of his own title are admissible tp prove his adverse possession.” Under this rule, it seems plain that the declarations of Thomas Oz-more were admissible. He was in possession of the land, and they are in favor of his own title; they were pertinent, and showing that he did not hold as the tenants of his children, but adversely, not 'only to them, but to the world. So, too, as to the'negroes; they were in possession, and the first clause of this same section declares that the declarations of a person in possession in disparagement of his own title are admissible in favor of any one, and against privies. They are declarations limiting their own possession aud stating who was their landlord. We do not think these declarations would have been admissible to show title in Thomas Ozmore; but they were admissible on the groat point at issue, to-wit: whether Thomas Ozmore was the tenant of his children before the date of the levy of the attachment. 2. The court was right in his charge, that to make the claimant’s title good the land must have passed out of Thomas Ozmore before the levy. However fair the sale may be, though it be for cash and with the most innocent intentions, it cannot be that a sale of property by the defendant, after the levy of an attachment upon it, can be good against the levy. The property is in the hands of the law, and an attachment on land would be utterly valueless if this were the law. The attachment and the levy is in the nature of Us pendens, the officer, by his levy, has impounded the property, and whatever right the defendant has must await the disposal of the court. The doctrine of Us pendens does not stand so much upon notice as upon the necessity that the proceedings of a court shall not be capable of being trifled with by the action of the party proceeded against. 3. We think the court erred in refusing the whole of the second request to charge. If this property was in fact bought with trust money — that is, with money belonging to the defendant’s children, then in equity, the land was theirs even before it was turned over to them, and it was not subject to the [119] debts of the father, even though' the formal title was in him. Creditors are not purchasers. Even, a secret equitable title may be set up against a judgment. But though the court was in' error in limiting the right-of'the claimants, even if the land was bought with their money, we do not feel authorized to disturb the verdict, because the evidence is overwhelming that it was not so bought. The only witness testifying in favor of this idea is the daughter, Mrs.........and her testimony is very loose and plainly inferential rather than a statement of facts. She states plumply, it is true, that she saw her grand-father, place $800 00 in her mother’s hands before her death, and she died in 1856. Her statement that this money was invested in a certain place, and that place sold, and this bought with the proceeds is, as we hpve said, plainly a statement of her conclusions. According-, too, to another gloss she gives of the transaction,'it was part of the arrangement at the time, that Thomas Ozmore was to buy the land and be in debt to his children, they to take the land if he failed to pay. But these statements were contrary to the plain terms of the deed, contrary, also, to the settlement alleged to have been made over a year before the deed, and contrary to the evidence of Thomas Ozmore in his interrogatories. All these state positively that all parties recognized the land as belonging to Thomas Ozmore, that it was conveyed or turned over to the children in payment of a debt he owed them as their guardian. In none of these transactions or testimony, is anything said or intimated to the effect that the land already belonged to the children because it was bought with another trust fund in Thomas Ozmore’s hands. Indeed, we are not sure but that by accepting the deed, according to the terms of it, they do not estop themselves from saying the land was in truth already theirs on other grounds, and independently of the-debt due by the guardian. We are, therefore, of the opinion that the court did not err in refusing the new trial. The error was not one which, had it not been committed, was of so serious a character as probably to affect the verdict. Judgment affirmed.