Olds v. Powell

ORMOND, J. — When property'is sent home with a new married couple, by the parents, it will be presumed to be a gift, unless at the time a less estate is declared, or limited. Whether it be a gift, or mere loan, is a question of intention; any fact therefore, which affords evidence of such intention, is admissible as part of the res gesim. It is not easy to conceive of any more conclusive mode of ascertaining the intention, than by the 'declarations of the donor, at, or about the time ; and this is not strenuously denied by the counsel for the plaintiff in error, but he insists that the donee is not affected by such declarations limiting the estate, unless made in his presence, or at least, unless a knowledge of them, is brought home to him. This objection, is founded upon a misapprehension of the true nature of such contracts as this. It is true, that in every contract the assent of the minds of both parties is necessary to its consummation ; but in the case of a donation, whether of the entire interest, or of a less estate, the assent of the donee is presumed; as he is the party to be benefited. He is passive, the donor acts; to the acts of the donor we must look therefore, to ascertain its true charac-acter; and it is wholly unimportant, whether the donee is present, or not, at the time of the declaration, or act, which manifests the character of the donation. It must be very rare, that in such cases, the real nature of the transaction would not be understood, although there was no actual communication, between the father-in-law, and son-in-law ; but if any doubt did exist, it would be the duty of the latter, to inquire and ascertain its nature. [See Banks v. Hatton, 1 Nott & McCord, 221; Nichols v. Edwards, 16 Pick. 62; Collin v. Pope, 1 Dev. Eq. 55.] It is a cardinal principle of the law of evidence, that the testimony must be confined to the issue between the parties, otherwise it is irrelevant, and may lead the jury astray. Testimony to be admissible, must relate to, and be connected with, the transaction it is offered to elucidate, and this connection [656] must be immediate, and not remote, or far fetched. Thus, in this case, what the plaintiff said, or did, when he portioned his other daughters, is not competent testimony to establish the true character of this transaction; as the acts were distant from each other, in point of time, and have no necessary connection with each other. Of the same description, are the declarations of the plaintiff in relation to his future conduct, in regard to the marriage portion of his other daughters. Surely, a more unsafe criterion could not be devised, by which to determine the character of an act, than the declarations of the party as to what it should be, made years before. These were not facts attending, or surrounding the transaction, and were therefore inadmissible as evidence. There are doubtless, cases, where the declarations of a party made years before the act done, are admitted in evidence to prove the intention of the party to do the act, as in cases of disputed testamentary dispositions. Such evidence is admitted upon a different principle, and is not strictly evidence of the act itself, but to prove, either the capacity, or intention, to do the particular act, from the fact, that an intention to do such act, had been cherished for such a length of time. In such cases there is no controversy about the act itself; here the very fact in dispute, is, what is the true nature of the act. We are therefore clear in the opinion, that the evidence of the previous acts, and declarations of the plaintiff as to his future conduct, anterior to this transaction, and not connected with it, were improperly admitted in evidence. The fact, that the defendant paid taxes on the slaves, did not tend in the slightest degree; to eviscerate the point in issue, which was not, whether the defendant supposed he was the owner of the slaves, but whether the plaintiff made an absolute, or qualified gift of them, to him or his wife. In addition, the act was equivocal in its nature, as it would have been his duty to pay the taxes, if entitled only to the use of the slaves; the testimony was therefore properly excluded. We think the Court did not err, in refusing to exclude the direct examination of Mrs. Powell. The reason assigned in the Court below, and here, is, that it does not appear that the defendant was present. We think the fair inference from the [657] deposition is, that the defendant was present, but whether he was, or was not, the testimony was proper. It consisted of the declarations of the father, as to the interest he intended to give his daughter in the slaves, which, as already stated, was competent testimony, to establish the character of the donation, being made at, or about the time, the negroes were being sent home to the new married couple. It appears, that from some cause, which is not disclosed, the direct examination of Mrs. Gilmer, a witness for the plaintiff, whose deposition had been taken, was excluded, but the Court permitted the cross examination to be read as evidence. The objection, whatever it was, did not go to the entire deposition, but only to the examination in chief, and we are not able to perceive any good reason for excluding the cross examination. If the examination in chief, was excluded, because the subject matter of the examination was inadmissible, we think the cross examination would share the same fate; otherwise great injustice might be done, as the party against whom the deposition was taken, could not know in advance, whether the examination in chief would be received or not, and might therefore cross examine the witness, conditionally; and so far as he confined himself to the objectionable matter brought out upon the direct examination, he would not be bound by it, if the direct examination was not admitted. We have not sufficient information, from the record, to enable us to determine, whether the Court erred or not, and as the cause must be sent back on another point, it is unimportant, except, as it regards the future action of the Court. The depositions were also objected to, because it did not appear from the certificate of the commissioner, that they were taken, at the time, and place, at which the opposite party had Been notified to attend. The commission, it appears, did not require the deposition to be taken at any particular place, but the notice which pointed out the time and place, was inclosed by the commissioner, and sent with the deposition to the Court. What the precise language of the certificate was, we are not informed. If it certified, that in pursuance to, or by authority derived from, the commission, (to which it appears the notice •was attached,) the deposition was taken, we think under the previous decisions of this Court, it would be sufficient evi [658] dence, at least prima facie, that the deposition was taken according to the notice. This ought to be presumed, until some proof is made creating a doubt of. its correctness, when the deposition should be suppressed, unless shown by proof aliun-de to have been taken at the proper time and place. For the error of the Court as shown in this, opinion, the judgment must be reversed, and the cause remanded.