Upson v. Raiford

W ALKER, J. It is a well-established doctrine of the law, ■that the entry by a person o.f a receipt, discharging.a demand due to'him, is, after his death, evidence of the payment, and of the person who made the payment. — Harrison v. Harrison, 9 Ala. 73 ; Cowen & Hill’s Notes to Phillipps on Evidence, 3d edition, part I, p. 258, note 193 ; also, Goodgame v. Cole, 12 Ala. 77; Dubose v. Young & McDowell, 14 Ala. 139. The evidence offered, and rejected by the court, clearly' comes within the rule. It was not irrelevant, but contributed to show a compliance, on the part of the appellant, with one of the terms of his purchase from Lauren Upson, to the effect that he should pay off the note of King. The fact that the receipt was opposed'to the statement of Lauren Upson, that King’s note was discharged, at the time" of the purchase', by the appellant handing the money to the witness, and .the latter handing it to King, does not affect its admissibility. While it is not permissible for a party to discredit his own witness, there is no rule of law which precludes him from giving evidence varying'from the testimony of a witness introduced by him. ' • The declarations of Lauren Upson, given in evidence by the appellee, were made while he was in possession of the slaves, and were, in substance, that the slaves belonged to him, but that he had made a bill of sale of them to the plaintiff" to avoid .paying his debts. If any portion of this evidence was legal, we cannot say that the court erred in overruling the objection to it; because the objection was general. That part of the evidence which consists of the declarant’s statement that the property belonged to him, he being at the time in possession; was certainly admissible, for the purpose of explaining his-possession. This, identical point, having been repeatedly decided by this court, must be regarded as ‘ now Settled. — Martin v. Hardesty, 27 Ala. 460 ; Thomas v. Henderson, 27 Ala. 530 ; Thomas v. DeGraffenreid, 27 Ala. 650; Nelson v. Iverson, 24 Ala. 16 ; same case, 19 Ala. 95 ; same — 195 — case, 17 Ala. 222; Perry v. Graham, 18 Ala. 825 ; Darling v. Bryant & Walker, 17 Ala. 12 ; Mobley v. Bilberry, 17 Ala. 428. A charge which has the , effect of withdrawing from the consideration of the jury testimony which tends, even slightly, to sustain the plaintiff’s casé.or the defendant’s .defense, is erroneous. — Holmes v. The State, 23 Ala. 23 ; Reese v. Beck, 25 Ala. 659 ; Edgar v. McArn, 22 Ala, 813 ; Pritchett v. Munroe, 22 Ala. 501. While the charge of the court must be construed in reference to the proof, it would be improper for this court to undertake to determine- the weight of evidence, and to construe the charge upon the hypothesis that the preponderance of conflicting evidence was on one side or the other. — Dill v. Camp, 22 Ala. 261. Therefore, in determining upon the charge given, it is our province to inquire as to the tendencies, and not as 'to the weight or credibility of the proof. We cannot say, after a careful examination, thaUtliex&was-^ no proof conducing to show a bona-fide hiring J^.tlre j^intiff ¶| to Lauren Upson, for an adequate consideration» It -í¿ípul3f^ have been left to the jury to determine tljfs effect e£¡ the J/ evidence on that subject. The first chará'e of^fche U&urt j assumes that, notwithstanding the possession \pf $lle shwesA5 ñ was retained by Lauren Upson upon a contracto! ^nr^.-the'-N/ conveyance to the plaintiff would be ’fraudulenti-ft lawi^TF" this charge was given upon the assumption that there was no evidence conducing to show the bona fides, of the hiring and the adequacy of the consideration, it is erroneous, for the reasons already stated. If it was given upon the. supposition that the retention of possession by the vendor, after an absolute sale, could not be explained by proof, of a bona-fide hiring, the consideration of which was paid, it was still improper. It is undoubtedly the law, that such a hiring would be a sufficient explanation to remove the presumption of fraud from the inconsistency of a continued possession after an absolute sale. — Planters’ & Merchants’’ Bank v. Borland, 5 Ala. 548 ; Borland v. Walker, 7 Ala. 278 ; Millard v. Hall, 24 Ala. 209 ; Maulden v. Terrell & Mitchell, 14 Ala. 814. The second charge given can only be correct, upon the supposition that a contract, made at the time of the sale, by — 196 — which the vendor was to pay the hire in the board and clothing of the slaves, would not be a sufficient explanation, if it were expensive to the vendor, although the board and clothing might be a fair compensation for the use of the slaves, and the hiring might be bona fide. The court could not, in this case, assume that there was no proof conducing to show that a hiring for the board and clothing of the slaves was not upon a fair consideration and bona fide. The fact that the keeping of the slaves was expensive to the vendor, would not, of itself, be sufficient to authorize the court to assume in the charge that the hiring was simulated and unreal. Its effect should have been left to the consideration of the jury. It is conceivable that a bona-fide hiring might become expensive to the bailee. It is true that the fact of the vendor’s retaining the slaves upon a contract of hiring, the consideration of which was their board and clothing, would be a suspicious circumstance of weight; but it is explicable, so as to make it comport with fairness and honesty. If, from sickness and infancy, it would be a fair contract to pay the hire in the board and clothing of the slaves, we see no reason why such a contract should be condemned on account of the consideration alone. It might be a favorable arrangement for the owner, to have such slaves taken care care of until their health might improve, or until the younger slaves might grow up and become fit for active labor. This charge is sought to be maintained, by reference to that part of the statute of frauds having reference to three years possession without demand. — Clay’s Digest, 255. The act provides, “ that if the borrower of goods and chattels shall have remained in possession for three years, without demand made and pursued by due course of law ; or where a reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder, or otherwise, the possession whereof shall have remained with another as aforesaid ; the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, ■reservation, or limitation of use or property, were declared by will, or by deed in writing,” &c. The third section of the — 197 — act excludes from the operation of the statute..above quoted estates or interests in lands, goods or chattels, which are “ upon good consideration,” and honafide lawfully conveyed to- any person. The term “ good consideration,” in this statute, was correctly held, in the cases of the Bank v. Croft, 6 Ala. 622, and Johnson v. Bank, 7 Ala. 379, to be equivalent in meaning to valuable consideration. Those possessions, then, which are upon valu'able consideration and Iona fide, are without the operation of that part of the statute 'which subjects the property possessed for three years to be regarded, as to creditors and purchasers, as belonging to' the possessor. A possession under a bona-fide contract of hiring, for valuable consideration, would manifestly be such a possession. It is the bonafides and the valuable consideration upon which a possession is held, that brings it within the exception ; and therefore, if the hiring be attended by those qualifications, it would make no difference, in legal effect, whether it was for a definite period, from year to year, or until the owner should think proper to terminate the bailment. If there be anything in the nature of the contract of hiring, conducing to show that the arrangement was one of fraudulent intent, it is a. subject for the consideration of the jury. There is no decisión of this court at variance with this position. In the case of Oden and Stubbenfield, reported in 2 Ala. 684, 4 Ala. 40, and 9 Ala. 651, the question whether a contract to pay for the past possession of slaves would protect the title of the alleged owner, was decided in the negative. The decisions in Tatum v. Manning, 9 Ala. 145, Johnson v. Bank, 7 Ala. 379, and Bank v. Croft, 6 Ala. 622, recognize the principle we have laid down. • The plaintiff’s vendor retained the possession of the slaves for a period exceeding three years. This possession would, under the second section of the statute of frauds, entitle the creditors of him in possession to treat them as their debtor’s property, unless that possession was botiafide and for a valuable consideration. If the testimony was such as to authorize the court to assume that the possession was not bona fide and for a valuable consideration, the second charge might be maintained, for the continued possession of the plaintiff’s vendor is an undisputed fact in the case. Under the doctrine — 198 — which we have already laid down, the court could not so assume ; because there was some proof, conducing to show a bona-fide hiring- by Lauren Upson-from the plaintiff. We do not intend to determine the weight or credibility of the proof: we merely intend to say, that'there is such proof; and if so, however weak it may be, its effect and credibility should have been left to the jury. ’■ There is testimony conducing to show that the purchase of the slaves by the plaintiff was the result of necessity, and not of need of the property ; 'that the slaves had, for some time, been in the family 'of Lauren Upson ; that by the contract between Lauren and Edwin Upson, the latter was to pay the doctor’s bills and the taxes; that Lauren Upson, one year, gave his-note for fifty dollars hire; that one of the slaves, Sarah,- was taken away by Edwin Upson when she attained an age at which she became serviceable to him; that the board and clothing-of the slaves was a full equivalent for their' services •; and that some of them were young, and, while kept by Lauren Upson, were attaining an-' age when they would become useful; We are not prepared to say, 'with these facts in the bill of exceptions, that there was no proof Conducing to %h'ow that the contract, under which Lauren Upson kept possession, was not a bona-fide hiring for a valuable consideration. The effect of this testimony should have been left to the jury; That the testimony may be weak, is no argument against our view of the question. It is not the province of the court to determine its weight; and we wish it to be distinctly understood that we do not intend to determine the weakness or strength of the testimony on either, side, and that in noticing some of the testimony in .the case, we have merely designed to discharge our duty, in determining the correctness of the assumptions in the charges, and-not to indicate the’, effect which the jury ought to give to it. - '- Whether or not a contract of hiring for the ■ board and clothing of- the slaves would take the continued possession-fox1 three years out of the statute of frauds, would depend upon whether the board' and clothing was a valuable consideration, and the 'contract itself bona fide ; and these, in the case before us in the bill of exceptions, are questions for the jury. If the board and clothing would be a fair equivalent — 199 — for such services as the slaves could render, and the prospective growth and improvement of the property gave to it its chief value, the consideration would be valuable. The honafides of the transaction would be a question for the jury, determinable from all the circumstances. In Swift v. Fitzhugh, 9 Porter, it is said that, “ when the facts are clear and undisputed, the question of fraud or not is a pure question of law.” In the case of the Planters’ & Merchants’ Bank of Mobile v. Borland, the remark is made, “ There is no question that, the facts being fully ascertained, fraud is a question of law.” In Henderson v. Mabry, 13 Ala. 715, Judge Chilton, speaking in reference to a charge that the special circumstances in evidence before the jury, if true, were sufficient to rebut the presumption of fraud arising from continued possession by the vendor, says : “ This charge, had there been a conflict of proof upon the question of fraud, would, perhaps, have been improper, inasmuch as its effect would have been to withdraw from the consideration of the jury the weight and credibility of the doubtful or conflicting proof. — See Boyd & Macon v. McIvor, 11 Ala. 822. But, as before stated, the proof was not of this character. The facts were clear and undisputed ; and it is proper, in such case, that the court charge directly upon them, and give the law of the case as applicable to them without hypothesis.” The question of the valuable consideration and honafides of the hiring, in this case, depends upon facts, some of which bear remotely upon it, and the deductions from which are by no means clear and indisputable. Upon the authority of the cases cited, the court should not undertake to determine those facts ; but should declare the law hypothetically, and leave the jury to find the facts. The judgment of the court below is reversed, and the cause remanded.