McBride v. Thompson

COLLIER, C. J. The declarations of a tenant in the possession of land are admissible as part of the res gestae, (Bliss v. Winston, 1 Ala. Rep. 344; 2 Phil. Ev. C. & H. notes, 592 to 601;) and it has been often- held that the same rule prevails in its utmost extent as to personal property. [Oden v. Stubblefield, 4 [653] Ala. Rep. 40; see also, Phil. Ev. C. & H.’s notes, 592 to 601, 644.] But it is not to be understood that such declarations are admissible to every conceivable extent. True, the affirmation of the party in possession, that he held in his own right, or under another, is proper evidence as part of the res gestae, which res gestae is his continuous possession; but his declarations beyond this are no part of the subject matter, or thing done, and cannot be received as such. While it is allowable to prove statements of one in possession, and explanatory thereof, it is not permissible to show every thing that may have been said by him in respect to the title; as that it was acquired bona fide, and for a valuable consideration ; was paid for by the money of a third person, or his own, &c. This we have seen, instead of being a part of the res gestae, would be something beyond and independent of it. Declarations, although not admissible upon the principle we have stated, are sometimes received, because they were, against the interest of the party at the time they were made. It is needless to consider cases of the latter description, as it is clear that the declarations of Hobdy do not appear to have been against his interest. The record is at fault in not disclosing with particularity what were the statements of Hobdy which the plaintiffs offered to prove; and the proposition was so broad, viz: what he said as to his title to the slave Louisa, that its rejection was entirely proper. It embraced not only what he said in respect to, and explanatory of his possession, but declarations as to the title, how, when, from whom, &c. he acquired it. The objection made to the questions proposed to Adams were properly overruled. , He was asked if, at a certain time and place, in the presence of a certain person, (naming him,) the inquiry was not made of him, whether' there was any other lien on the property in controversy. This question was proposed by the defendant, upon the cross-examination of the plaintiff’s witness, who it must be presumed had given testimony tending to sustain their title. Its tendency was to weaken that title and impair the effect of the testimony of the witness upon his examination in chief. An answer to the second inquiry, viz. whether there were, not other liens on Louisa, when Woodward asked that question, might be important to the defendant, and could not prejudice the plaintiffs if their title was good. The same remark applies to the third question proposed to Adams. [654] In respect to the proof of the payment of money by the beneficiaries in the deed of trust, before the sale was made thereunder, it cannot be regarded as at all. important in the present posture of this case. The cause was put to the jury upon the bonajides of Hobdy’s purchase, and they were informed, that if they believed he paid for the woman with Adams’ money, he acquired no title. This charge, as against Adams himself, or one who does not defend upon the ground of an interest in himself, or a third person, acquired for a valuable consideration, cannot perhaps be sustained. The bill of exceptions does not state the points intended to be presented with as much distinctness as it should have done, and we must give to it such an interpretation as seems to us most natural and reasonable. Adams, it will be remarked, when asked whether he had not , admitted, after the sale under the deed of trust in 1841, that he still owed Woodward a balance of fifteen hundred dollars, denied that he made such an admission. The defendant disproved the truth of the denial, and then proved that Woodward and Stone had paid money as sureties of Adams, previous to the sale by the trustee. This latter evidence was objected to, generally, but adjudged competent. It does not appear from all this, that there was any controversy as to the regularity of the sale under the deed, or whether the contingency occurred upon which the trustee was authorized to sell, viz; that a judgment was rendered against Woodward alone, or himself and Stone. ■ No charge of the Court was prayed which brings up this question, and we cannot presume that it was intended to raise it. The charge then must not be taken as the assertion of a universal proposition, but should be considered in reference to the case before the jury. In this view we may suppose the trustee had the right, under the deed, to seize the slaves conveyed by it, and it may be presumed, in the absence of all controversy upoii the point, that the sale was regular. But if the defendant could claim nothing by his purchase, he might successfully resist a recovery, if Hobdy’s purchase was fraudulent against creditors; by setting up the right of the trustee to hold the property under the deed. This view is decisive of the case, and the result is, that the judgment must be affirmed.