Gunn v. Barrow

DARGAN, C. J. This was an action, brought by the plaintiff against the defendant in error, to recover four slaves. Upon the trial a bill of exceptions was sealed by the presiding judge, which shows that the plaintiff, to prove title in himself, introduced a deed of trust, bearing date 24th day of January 1848, which was executed by Larkin R. Gunn, and which purported to convey the slaves in controversy to the plaintiff, upon the trusts that he would apply the proceeds arising from the work and employment of said slaves, to the support and maintenance of Nancy E. Barrow, during her natural life, and in the event that she should have a child or children, the said slaves and their increase, at her death, should descend to such child or children, in equal proportions; but if the said Nancy E. should die, leaving no children, then the slaves should revert to and become the properly of the grantor, should he be then living, but if he should not be then in life, then the slaves should become the property of the brothers and sisters of the said Nancy E. Barrow. The deed then declared that it was the intention of the donor, that Nancy E. Barrow should have a life estate in the slaves for her own separate use, free from thé char'ge'or alienatiori'of her husband, Jantes H. Barrow, with'remainder to the child'or children of the said Nancy, and if she should die, leaving no child or children, then the remainder over as before designated.' It was shown that Nancy E. Barrow, was the daughter of'the grantor, and that, at the time of the' intermarriage between her and the defendant, the slaves belonged to the donor, It also appeared that Nancy E. was still living and had children. If was also shown that the slaves went into the possession of the defendant before the. execution of the deed, but it was proved by the testimony of the donor and his wife, that the defendant received the slaves with the understanding, that the donor should execute a deed of them of similar import to the one réad in evidence. The defendant objected to the competency of the testimony of the donor and . his wife, but his objection was overruled. The defendant introduced several witnesses, who tesfified'that, after the slaves went into his.possession, the donor stated that he had given tlie slaves to the defendant. This is the substance of the testimouy that gives rise to the question, that must ultimately determine this case, and that is, whether the donor, at the tíme of executing the [747] deed, had the right to dispose of the property in the manner described therein? If the property passed by the deed, it is then clear that the legal title vested in the plaintiff as trustee, and still remains in him, for the purpose of executing the trust, and at law, he must recover against any one, who withholds the possession from him. Even if we were to presume, that the husband’s possession was that of the wife, or that he held the slaves for her, he could not resist a recovery; for so long as the legal title remains in the trustee, the trusts not being executed, he may recover at law against his own cestui que trust, unless the instrument, by which the trusts were created, contain a stipulation that the possession shall remain with the cestui que trust. We have said this much upon the supposition that the court was influenced in refusing same of the charges requested, by the idea that the possession of the husband must be considered as the possession of the wife, and that the trustee could not recover against her; but,- so far as we can discover from the record, the defendant set up title in himself, irrespective of the right of his wife. In either aspect of the case, if the deed conveyed the title, to the. plaintiff, he was entitled to recover, for the trust not being executed, the legal title must still remain in him. If the defendant received the possession of the slaves, with the understanding that the donor should.execute a deed for them, similar in its character to the one introduced in evidence, then it is clear that the donor had the right to convey the slaves in the manner that- he did, and the trustee would take the legal title.— O’Neal, Michaux et al v. Teague et al. 8 Ala. 345, It is true, that when property is sent home with a newly married couple by their parents, the law presumes it a gift by way of advancement in life, unless at the time a less estate or interest was intended; and this intention of the parent may be ascertained by his declarations, made at or about the time he parts with the possession, and if from them, or from any other legitimate proof, it is shown that the parent did not intend an absolute gift, then the presumption of law, that a gift was intended, is rebutted, and the married couple take only such an interest as it appears the parent intended they should. — Olds v. Powell, 7 Ala. 652; Powell v. Olds, 9 ib. 861; 8 ib. 345. We have said that this intention of the donor may be gathered from his declarations made at or about [748] the time he parts with the possession. This must not, however, be understood to include declarations made after he parts with the possession, for the law raises the presumption of a gift from ■the time of the delivery of possession, and then the title of the donor is presumed to be extinguished, and he cannot defeat the title he has created and regain his title by declarations subsequently made. This view of the law, applied to the evidence, and to the instructions prayed by the plaintiff, as well as those given, shows that the court erred, as the jury must have been impressed with the belief that the plaintiff could not recover, although the grantor had the right to convey the property in the manner that he did, at the time the deed was executed. Whether the grantor had this right or not, as the case is now presented, seems to us to be the only question involved, for if he had this right; if he had never parted with his title to the slaves until he made the deed, then the legal title is vested in the plaintiff, and there is nothing contained in the deed that would prevent him at law from recovering possession even against the cestui que trust. The judgment must be reversed and the cause remanded, and we do not deem it necessary to examine any other question, growing out of the assignment of errors, as the view- we have taken will enable the court correctly to decide the case upon another trial. We will, however, remark that we cannot upon this writ of error examine the question, whether the donor and his wife are competent witnesses; they were permitted to testify against the objection of the defendant; the judgment is in his favor, and the writ of error is prosecuted by the plaintiff. The defendant cannot assign errors on this writ, and the question therefore is not before us. Judgment reversed and cause remanded.