Gressett v. Agee

DARGAN, J. It is unnecessary to examine the questions arising on the admissibility of the testimony, for if the charge of the court was correct, whether the testimony was admitted or rejected, became wholly immaterial; for the court assumed, in the charge to the jury, that the sale was fair and bona fide, but instructed them, that if the defendant in execution had had the possession of the slaves for three years prior to the levy, then the slaves wore liable to be sold by the execution, under the statute of frauds. The second section of the statute or frauds, Clay’s Dig. 255, after prescribing the mode by which personal property [358] shall be conveyed, when the conveyance is not founded on a valuable consideration, proceeds, “and in like manner, when any loan of goods and chattels, shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained for the space of three years, without demand made, and pursued by due course of law, on the part of the pretended lender, or when any reservation, or limitation shall be pretended to have been made of a use or property by way of condition, reversion, remainder, or otherwise, in goods or chattels, the possession whereof shall have remained with another as aforesaid, the same shall be taken, as to the creditors and purchasers of the person so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, limitation, or reservation of use, or property, were declared by will, or deed in writing, proved and recorded as aforesaid.” This section of the statute has received a construction in the case of Myers v. Peek, adm’r, 2 Ala. R. 638, of which we approve. It was decided in that case, that it was not necessary to show, that the possession was acquired under a contract of bailment, techuicall y called accommodatum, or loan for use, but that if the owner of personal property parted with the possession voluntarily, either with or without an express contract, there must be a will, or deed in writing, declaring the loan, reservation, limitation of use, &c. duly recorded, or else the absolute property shall be taken to be with the person who has taken the possession, in favor of the creditors and. purchasers of the possessor. It is not necessary that the creditor should show au express contract, by which the debtor obtained possession; if he holds the possession with the permission of the owner, for the time specified in the act, the property becomes liable to the debts of him who has the possession. It must not however be inferred, that we intend to hold, that if one should annually hire slaves, for three, or more years, the hiring expiring and being renewed annually, that the statute would apply to such a possession; but we hold, that if there is no fixed time at which the property is to be returned, or if the time fixed be more than three years, or if there is any reservation of interest in the owner who [359] parts with the possession, and such possession shall continue for more than three years, under the permission of, or contract with, the owner, the property is, by the statute, subjected to the debts of him who has the possession, and the purchaser at sheriff’s sale will acquire the absolute title, unless the contract of loan, or reservation of right, be reduced to writing, by will or deed, and recorded in the manner prescribed by the act. The testimony fully warranted the charge given, and it was in accordance with the view here expressed. It has however beeu contended, that the defendant in execution did not have possession of the slaves until after the death of W. J. Gressett, and as the claimant was not appointed administrator until December, 1843, the period of three years had not elapsed before the levy was made. It is true, that if the defendant in execution, in fact obtained possession after the death of Win. J. Gressett, then the time necessary under the statute, to subject the property to the debts of the defendant in execution, could not commence running until there was an administrator appointed, who could make demand of possession, and bring suit to recover the property. But if the defendant in execution had the possession, W. J. Gressett being in life, and with his knowledge and permission, then his death would not have any influence in the computation of the time necessary to subject the property to the satisfaction of the debt of Benjamin M. Gressett. Whether' the possession of Benjamin M. Gressett, after the sale to William J. Gressett, commenced before or after his death, was a question of fact to be determined by the jury, and not a question of law, and if the claimant wished, he could have required specific instructions upou this point. He has not not however done so, and we can only review the charge as given, which is in accordance with the law. The judgment is therefore affirmed.