Norton v. Linton

PARSONS, J. Gillespie, by his deed of bargain and sale, expressed to be founded on a pecuniary and other considerations, conveyed the negro girl Sukey to Samuel Linton, the defendant in this action, “in trust and for the use and benefit of Lucy Hudspeth Linton, daugbther of said Samuel Linton.1' • There are two covenants of warranty in the deed; one to Lucy herself, by which the grantor covenants to warrant and defend the negro to her, during her natural life ; the other to the grantee, for the use and benefit of Lucy. The counsel of the plaintiffs contends that Lucy took the legal title, and his argument is founded in part on the first covenant of warranty. If k be conceded that she might have maintained an action at law upon it against Mr. Gillespie, its utmost legal effect is con [693] ceded. But the legal title is manifestly conveyed by the deed itself to Samuel Linton, and the covenant to Lucy, which was executory, could not dhvest it -; and that does not appear to have been the intention of the parties. The case nearest the present, to which we have been referedby the counsel of the plaintiffs, is Carleton & Co. v. Banks, 7 Ala. 32. There the slaves were conveyed to a trustee upon trust, that “he will permit the party of the third part to have! and retain possession of the slaves and their increase, and to receive and enjoy the profits thereof, for and during the term of her natural life,” &c. Under the deed the slaves went into possession of the party of the third part, and i>t was held by a majority of the court that her life estate could’be sold under an execution against her husband. The deed in the present case does not provide that .Lucy should have, the possession, and it appears that neither she, nor her husband, ever had possession, of the deed or of the property; and these circumstances mark the distinctions between. Carleton & Co. v. Banks and this case. We are entirely satisfied that Lucy had no legal right to the property or possession, and that she could maintain no action at law for it. With her rights in equity, whatever they may be, we have nothing to do at present. 2. It appears that the plaintiffs claimed under the deed at the trial, which showed that they could not recover , at law», They were not injured, therefore, by the.evidence to which they excepted, even if it was erroneously admitted. It was the evidence of the grantor as. a witness, against which the counsel, makes two objections: first, that he could not be permitted to» impeach his own deed, and, secondly, that his testimony that he never had any title or color of title to the negro that was conveyed, was but matter of conclusion. As to the first, it is true some courts have held that a party to mercantile paper cannot be admitted as a witness to impeach it; but if this was. ever held with regard to deeds, the authorities are clearly the. other way now. As to the second, a paper title to negroes is not necessary, at least in this State. A title, however, is made up of facts, to which alone a witness can testify, in general; but no title, or color of title, is - constituted of facts, but is rather a consequence of the non-existence of facts. When a witness states that he never had title or color of title, it is a negation of [694] every fact that could constitute a title, and as such the evidence is admissible, but the witness can be cross-examined. If the interrogatories were leading or otherwise objectionable, it was too late to make the objection to the deposition for that cause, on the trial. Let the judgment be affirmed.