Frow & Ferguson v. Downman

GOLDTHWAITE, J. 1. We think the circuit court was mistaken in considering the witness it excluded as within the terms or intention of the act of 1845, rendering the mortgagor, or' defendant in execution incompetent in claim.suits. The object of this statute was, to change the law as it then stood in two particulars — first, to permit the mortgagee to interpose a claim when the mortgaged estate was levied on at the suit of a creditor of the mortgagor, irrespective of the law day of the deed — and second, to prevent the mortgagor defendant' in execution ft;om giving testimony in all trials of the right of property, whether under that or the existing laws. [Brumby v. Langdon, 10 Ala. R. 747; Acts of 1845, p. 136.] It evident that the witness is not the defendant in execution, because there is another person who fills that condition, and the only question is, whether he stands as a mortgagor within the meaning of the act. It is very possible a conveyance in trust for the benefit of creditors, where a condition is reserved that the deed shall be void upon the payment of the debts, would be considered as a mortgage within this act, but where the trust, as it is by the deed in this instance, is created absolutely, and without any condi [884] tion whatever, the grantor is in no sense of the term a mortgagor. The estate of the trustees is dependent on no condition, and vests absolutely on the execution of the deed. Under it, they at any moment could require the possession, and act as owners to any extent compatible with the trusts. Although we thus come to the conclusion the witness is not within the terms or intention of the act referred to, the point of rejection cannot be finally disposed of without the further consideration, whether, independent of this, the witness was competent. 2. His true relation to the trustees in the deed, who are the claimants here, is that of a vendor, with a trust resulting “to himself in the event the property conveyed should leave a surplus, after satisfying the trusts declared — in other words, after the payment of all creditors. Like all other vendors of personal estate, it is possible he might be liable on the implied warranty of title. Independent of these interests, which are capable of being released by the witness, and the trustees, there is one which, under ordinary circumstances, would not be releasable by any but the creditors themselves; and this is the interest which arises to the witness from the disposition of the slaves to the payments of the cestui que trusts of the deed. Whenever, or however those debts are paid, it is an advantage to the witness. But standing as a discharged bankrupt, these as well as all other debts are extinguished, and the only interest remaining with him, is the possible one arising out of the implied warranty, (assuming that a warranty is not discharged by the bankruptcy,) and the interest he has in the residue of his estate, which possibly may remain after paying his debts under the decree. As we understand the record, these were all offered to be released. The decision of Brown v. Brown, 5 Ala. B. 508, is direct, to show that a vendor who is released by his vendee, is a competent witness, as well as that the release need not be delivered to the party in person. We are clear, that upon the execution of the necessary releases to and from the witness, that his competency was restored, whatever the exceptions to his credibility might be, from his peculiar relation to the title. [885] 3. It is very evident the trustees and cestuis que trust in the deed, do not occupy the position of bona fide purchasers without notice. In point of fact, they are mere volunteers parting with no consideration at the execution of the deed, and giving, up no rights of which they were then possessed. An assignee, under such circumstances, is in no better condition than if the property had been subject to a secret trust, and as to such, it is the well settled rule, they are not considered as bona fide purchasers. The general assignee of a debtor in failing circumstances, stands in precisely the same condition as the debtor himself. [Story’s Eq. § 1228; see also, Bank of Mobile v. Hall, 6 Ala. Rep. 639; Carver, Woolsey, et als. v. Miller & Co. at this term.] We think the refusal to give the charge requested was proper. 4. The only other matter to be noticed is, the rejection of the deed hy which Treadwell assigned the slaves to persons who are strangers to the suit? It is the settled’ rule of this court, in relation to claim suits, that the claimant is not permitted to show an outstanding title in a stranger, for the purpose of defeating the plaintiff’s execution. [McGrew v. Hart, 1 Port. 175.] For the error in excluding the witness, the judgment must be reversed and remanded.