Knox v. Fair

DARGAN, C. J. It has been heretofore decided by this court, that if a slave be lent and continue in the possession of the borrower for more than three years, and the lender regain the possession before any creditor obtains a lien upon the slave, it cannot be afterwards subjected to the debts of the borrower on account of such possession. — Maul v. Hays, 12 Ala. 499. It therefore became material to inquire not only whether Taylor had had three years’ possession of the slaves with the consent or permission of the claimant, but also whether that possession continued up to the time that the execution came into the hands of the sheriff; for until then no lien could be created on the slaves by the execution. For this purpose, we think the testimony of Coleman although by no means conclusive, was nev [508] ertheless admissible-evidence. He stated that after Taylor left the State the negro woman hired' a house herself for a month and paid the rent; that he then without authority from any one rented a house for her, to which she and her children removed; that he sold some of the furniture of Taylor and paid the rent; and that, seeing Taylor afterwards, he informed him what he had done, whereupon Taylor approved and ratified the act. This was whilst the slaves were in the house and before- the levy. Now I admit that the subsequent recognition of an unauthorised act of another cannot give validity to it so as to defeat a right or an estate vested in a third person, (Story on Agency, § 246 ; 5 East. 491,) but 1 cannot think this principle applicable to the case before us. There was some evidence tencfing to show that Taylor had had the possession of the slaves before he left Alabama, and although it was by no means conclusive, the proof offered was admissible in this view of the case. Had thejury come to the conclusion that the slaves were in the possession of Taylor at the time he left the State, it would then have been their duty to inquire whether that possession was continued by him afterwards, for if one in the actual possession of property should leave home or abandon his domicil, without carrying the property with him, yet if he intends to retain the possession or control over it, it would require some positive act of ownership by him, who had the legal title, to divest such possession; otherwise the mere absence from home wouJd defeat an actual possession, without regard to the animus revertendi, or the intention to retain the possession. Upon the hypothesis then that Taylor had the possession when he left the State, we think his subsequent recognition of the acts of Coleman was evidence tending to show that he did not intend to abandon his possession and control of the slaves. There is also another view in which this testimony was admissible. That a slave occupies a .house rented by one who is not the legal owner, is some evidence that the slave is in the possession of the party who rents the house; and although Coleman stated he bad rented the house without auího¡ by, y.-i he ¡aid the rent with the funds of Taylor, who iaisft-.il u- The term then belonged to Tayhr, and the slates ivej;: h ids house for the time being. The court cried in n-jecti.-g s ;s testimony. 2. In regaici to the rejee ,.m of the judgments and execu [509] lions against Taylor, to show his insolvency previous to the purchase by the claimant, the court is not fully agreed. I admit that in cases of fraud, very remote circumstances are admissible, for slight circumstances grouped together frequently mark the character of a transaction and develop the fraud; but when a remote circumstance is rejected by the court below, before we can say that the court erred, we must be able to see that in some aspect of the case the rejected circumstance or evidence, if admitted, might have benefitted the party offering it. Here the-plaintiff in execution offered to prove the insolvency of Taylor. He contends that this would have shown that he had a motive in taking the title to any property he might have purchased in the name of another. I think, however, that this proof would have been primo, facie beneficial to the claimant, and to have authorised the plaintiff to introduce it as evidence of a motive, he should at least have shown that notwithstanding Taylor’s visible insolvency, he had the means or the capacity to raise the money, and as the record furnishes no such evidence, 1 do not think the court erred in rejecting the proof of Taylor’s insolvency. But we all agree in this, that if it had been shown that Taylor was able to furnish the money with which the slaves were purchased, then the judgment and executions showing his insolvency would have been admissible, even if they had been entitled to but little weight in the consideration of the jury. 3. The court was requested to charge the jury that there-was no evidence of any demand of the slaves made by the claimant of Taylor, or pursued by due course of law, from the time he purchased the slaves until the execution came into the hands of the sheriff. This charge the court refused, but informed the jury that he had heard no such evidence, but that his attention had been drawn from the case a part of the time, and he had not undertaken to charge his memory with all the evidence. When there is no evidence tending to prove a particular fact, the court may so instruct the jury, whether the evidence be oral or written. If the evidence is all written, it is the duty of the court so to instruct them, if it in no point of view tends to prove the particular fact. — Swift v. Fitzhugh, 9 Porter, 39; Bank of Maryland v. Duval, 7 Gill & J. 78. But I know of no case that holds it to be erroneous, should the judge decline so to charge, when the testimony is-all given orally from the stand and the [510] facts deposed to numerous and minute. Indeed such a practice would lead to the necessity of taking down all the evidence in writing that the court might clearly see whether there was any proof tending to prove the particular fact. It is certainly the duty of the presiding judge to pay particular attention to every part of the testimony that he may be enabled correctly to instruct the jury on the questions of law involved, but when many witnesses are examined and the facts detailed by them numerous, we would not hold that the court erred, should he charge the jury hypothetically, and refuse to charge that there was no testimony tending to prove a particular fact. Let the judgment be reversed for the error we have noticed, and the cause remanded.