Thompson v. Mawhinney

DARGAN, C. J. The first question presented for our consideration is, whether the declarations of one of the plaintiffs, in reference to the contract between them and Weir, should have been admitted as evidence? They were made after the contract had been completed, but whilst the plaintiffs were in possession of the land, and tended to show that the title and control of the cotton that should be raised was exclusively theirs; that Weir was not to hold or have any control over it, but was to receive one half the proceeds when it was sold. Where the declarations of a party are offered as evidence in his favor, in order to entitle them to be received, they must form a part of the res gestee — that is, they must form a part of the act done or be so connected with it as to be inseparable from it, and being thus connected with the transaction itself, they become evidence explanatory of the act. But if the declarations are merely a narrative of a past occurrence, they cannot be received as evidence. — Greenl. Ev. §§ 109-10; Cox v. Easly et al. 11 Ala. 862; McBride & Wife v. Thompson, 8 ib. 650. It is true that the declarations of a party against his interest are evidence against him, and declarations or admissions made by one in possession of property descriptive or explanatory of such possession are usually admitted, but whilst it is permissible to prove the statements of one in possession as explanatory thereof, his declarations in regard to the contract by which he acquired possession cannot be received as evidence. — McBride & Wife v. Thompson, supra. Such declarations would not be merely explanatory of the possession, as that the party in possession was the agent or tenant of another, or that he only had a life 367 estate or other less interest, but would be a narrative of the contract, and being in no manner connected with the possession, would be inadmissible as evidence in favor of the party making them. This view shows that the court erred in admitting the declarations of one of the plaintiffs as evidence of the terms of the contract between them and Wier which had been some time before consummated and perfected. The charge of the court complained of is predicated upon the following facts: In 1845 the plaintiffs entered into a contract with Weir by which it was agreed that they with two minor sons of Weir should cultivate his farm during that year in corn and cotton. The corn was tobe equally divided between Weir and the plaintiffs, but the cotton was to be sold by them, and after paying the expenses the nett -proceeds were to be equally di- . vided between the plaintiffs ,and Weir. The corn had been gathered and divided, the cotton had been ginned and hauled to the river and was marked in the plaintiffs’ names. The court charged the jury that if they believed that Weir was to receive one half of the proceeds of the cotton, and not one half of the cotton, that then he had not such an interest as was subject to levy and the plaintiffs were entitled to recover. We think it depends on the legal effect of . the contract whether Weir had such an interest in the cotton as was the, subject of levy and sale at law. If the contract could be construed as creating a tenancy between Weir and the plaintiffs, it -would then be very clear that he had no title to the product raised upon the land, for it is of the very nature of a lease that the tenant shall have the possession of the land and the title to the profits or products grown upon it. What the nature of this contract is and what rights the parties took under it to the product raised on the land is best solved by a reference to the authorities. In the case of Putnam v. Wise, 1 Hill, 234, the faets were that the owners of a farm agreed with two persons by contract under seal, that the latter should occupy and work it for a year, the occupiers agreeing to yield and pay the owners one half of the grain grown upon it; the court held that until there was a division of the product the parties were tenants in common of it. In Bradish v. Schenck, 8 Johns. 118, Curtiss took the land of the plaintiff to work it one year on shares and planted it in corn. The hogs of the defendant broke into the enclosure and 368 did damage to the com, for which Schenck, the owner of the land, brought trespass. The court held that the contract did not constitute a lease and therefore the suit was properly brought in the name of Schenck alone for the trespass done to the freehold, although the contract made the owner and.Curtiss tenants in common of the corn. In the case of Mavevick v. Lewis, 3 McCord 211, it was said that where the agreement was to take charge of a farm and work it on shares, the relation of landlord and tenant was not created. In Walker v. Fitts, 24 Pick. 191, it was held that where one agreed with another to cultivate his farm for one season and to pay him one half of the crop, a tenancy in common is created between the parties as to the product of the farm, until it is divided. These authorities sufficiently show that the plaintiffs and' Weir were tenants in common of the corn and also of the cotton, unless by the contract the legal title to the cotton vested exclusively in the plaintiffs. Tenants in common are such as hold by several distinct titles, but by unity of possession, because none knoweth his own severalty, therefore they all occupy promiscuously. — 2 Black. Com. 191: And this tenancy exists where there is a unity of possession merely. In the case of Blessney v. Howe, 3 Gill & J., the court said that it was an essential attribute of a tenancy in common that there should be a unity of possession. Unity of possession therefore is the very essence of a tenancy in common, and without it this tenancy cannot exist. It is true that the possession of one tenant is the possession of all, because all are entitled to the possession, but if from any contractor agreement one tenant shall part with his entire right of possession, we do not see how he can continue a tenant in common. To be a tenant in common or a joint tenant, one must have such a title as will authorise him to take and hold possession, and if he cati never be entitled to the possession nor to the control of the chattel, we are unable to percieve what legal title he can have. Indeed the right to the possession and enjoyment of property constitutes our title to it at law, and when we are so situated in reference to it that we can never legally claim possession, out legal title is gone. If then the terms of the contract were’ such as to exclude Weir altogether from the possession of the cotton— if consistently with the contract he could never be entitled to the possession, he cannot be a tenant in common, for possession 369 or the right to possess is an indispensable requisite of such a^ tenancy. But if the terms of the contract were not such as to exclude him altogether from the possession; for instance, if the plaintiffs only had the authority to sell the cotton but not the exclusive right of possession, the bare authority to sell would not exclude the right of possession in Weir, and consequently he would still be a tenant in common and his interest liable to levy and sale. These, we think, are the principles that must govern this case on a future trial, and we do not deem it necessary to enter into a'particular examination of the charge, as the case must be reversed for the error we have before noticed, it may, however, be observed, that the charge was not the most appropriate, that could have been given in reference to the legal evidence before the jury. Excluding the portioft that was illegal, but which the Circuit Court admitted, and applying the charge to the legal evidence alone, it was calculated to mislead the jury. Let the judgment be reversed and the cause remanded.