McLemore v. Nuckolls

A. J. WALKER, C. J. It was objected in the circuit court, that there was no decree for the payment of money, upon which the. fieri facias levied by -the defendant could issue. We think the .decree of the chancellor in which he makes a reference to the register, and the decree confirming the register’s report, when construed together, and in reference to the bill and to the réport confirmed, amount to an order for the payment of the several sums of money reported by the register to be due by the defendants severally to-the-respective creditors, notwithstanding the gross informality of-the decrees. — Huffaker v. Boring, 8 Ala. 88; Harland v. Eastland, Hardin, 500 ; Honore v. Colmesnil, 1 J. J. Marsh. 506. [2-3.] Mrs. Pinkston being the party really interested, and for whose benefit the suit was brought, as shown both by the complaint and the evidence, her admissions were competent evidence in favor of the adverse party. The bill in chancery, which was given in evidence, was sworn to by her, and was, therefore, not the mere allegation of counsel, buAa statement of facts, admissible -against her. Durden v. Cleaveland, 4 Ala. 225. Her coverture at the time when the affidavit was made of the tnith of her separate bill, does not exempt her from the operation of the rule, that declarations are evidence against .parties making them. The separate answer of a feme covert, made under [673] oatli by her, is admissible against her ; and so also must be her separate bill, when sworn to by her» — ~l Dan. Ch. PI. & Pr. 196. - For these reasons, there was no error in the admission of Mrs. Pinkston's bill in evidence against the plaintiff in this suit. [4.] It has been decided in this State, that the husband of a distributee of an estate would not be-a competent witness for the contestants of a will, where the interest of such distributee would be enlarged by the setting aside of the will. — -Walker v. Walker, 34 Ala. 469. Of course, the distributee would, under like circumstances, be an incompetent witness. A recovery by the plaintiff, in this case, would have precisely the same effect, in swelling the distributive share of the distributees of Mrs. Pinkston’s estate, as the setting aside of the will in the case cited would, have had. We therefore decide, upon the authority of that case, that a distributee of the estate of Mrs. Pinkston is an incompetent witness for the plaintiff,- and that there was no error in the refusal to permit James K. Pinkston, who was a distributee, to testify. [5.] The argument, upon which the defense in-this case rested, was, that the slave in controversy was sold under ■a mortgage executed by James El.-Pinkston-; that the slave was bought at that sale by Moses McLemore; that Moses McLemore conveyed the slave to Wm. J. McLemore, who conveyed her back to Moses McLemore, in trust for the separate use of Mrs. Pinkston, the wife of James K. Pinkston ; that the money, with which Moses McLemore bought and paid for the slave, was furnished by Mrs. Pinkston; that this money, as to the-creditors of James K. Pinkston, was, upon the principle settled in Pinkston v. McLemore, (SI Ala. SOS.) the property of the husband; that the complicated transaction, which resulted in a conveyance to Mrs. Piukston, was a contrivance to vest her with the title; and that the whole transaction amounted to nothing more than a gift by James K. Pinkston to his wife, which was void as to the debts under which the property was sold, because they were existing at the time of that transaction. [674] The plaintiff offered to introduce evidence, fomthe purpose of.showing that the money received by Moses McLemore from Mrs* Pinkston was not ..appropriated to the payment’ for the slave, but in a different manner. We do not say that the purpose, for which the evidence was offered, was illegal ;■ but we think,the means by which it was proposed to make the proof, was wholly inadmissible. The chancel y record, which was offered in evidence for that purpose, was res inter alios acta as to the defendant, and, therefore,, not evidence against him for any purpose. [6.] One of the objections made to the first charge given-, by the court, is, that a trustee, under a deed of trust made for th,e. benefit .of .creditors residing, in another. State, does not .become.the debtor, of the creditors, when he receives ■ moneys, which, by the terms .of.jfche deed, were to be paid over to..such creditors ; ..but that be could only become the debtor of the creditors, after a violation by the trustee of ,. his duties, or after demand made, by the creditors. This •, question is,conclusively;settled, adversely to the appellant who makes the objection, by the decisions of this court in .<> the cases of Foot v. Cobb, (18 Ala. 585,) and Gannard v. Eslava, (20 Ala. 732.) In the.former of those cases, it was-decided, that an agentv-who has sold th,e slave of his prim- .. cipal on a credit, and promised to.pay the pur.chase-money, when collected, to his ..principal, is, within the meaning off.’ the statute of frauds, a debtor; .and in the latter, that .the grantor in a deed containing, a general covenant of war- - ranty, there being an outstanding.adverse title, was a debtor of the grantee, within the meaning of the same statute. .. See, also, Hitchcock v. Lukens, 8 Por. 333. The fact that the creditors resided in another State, can make no difference. No distinction can be .predicated upon the residence of the creditors. [7,.] We. do not think this charge, obnoxious to any of the other objections made to it. . It.- is certainly not abstract. . The evidence, according.to the-,bill of exceptions, certainly conduced to show, that Pinkston, the trustee, reqeived money belonging to the trust within -three months [675] after the date of’the deed of trust, (Feb. 3, 1838;)' and the bill in chancery of Mrs. Pinkston'shows, that the agree — - ment between her and her husband "was made in 1839 or " 40 ; so that the bill of exceptions positively indicates a tendency of evidence to support the proposition, that the indebtedness of Pinkston existed before the agreement be- - tween himself and fi'is' wife was made. If, however, this were not the case, we would presume, iñ- favor of the charge, that it was not abstract; there' being nothing in the record to the contrary. [8.] In the case of Pinkston v. McLemore, (31 Ala. 308)). it'is distinctly decided, that the contract between Pinkston, and his wife was void, as to the existing, creditors of tlie former ; and that the earnings of the wife, and the servants put under her control, under that contract, were, as to such existing creditors, the property of the husband. If follows, that if the slave in controversy was bought by McLemore, the plaintiff, for the separate usp- of Mrs. Pinkston, with her earnings accruing under the agreement with her husbánd, then thé transaction was,- as to those who were the husband’s creditors' at the tiihe of such’agreement, a purchase of tlie property for the'wife, with’tlie husband’s money. The property so purchased would, as to creditors, belong to the husband, ’ and*"be liable td their" demands. We understand' the charge -"td assert'.''nothing .more than this. [9.] The plaintiff asked eight charges, which were sev- - erally refused. The first* four of .those charges affirm the plaintiff’s right to a verdict,'if'.the jury believe certain facts therein- specified." The facts specified in each one of - those, charges, whatever might he their legal effect, if not met and avoided by other facts,'certainly do'not rise to an-* irresistible inference in favor of the plaintiff’s right to a--’ recovery. . For example : if it be- conceded that,-upon the -” facts presented in each-one of those several charges, a title, . good as to-the creditors of-Pinkston, would have vested in” the plaintiff; yet no right to a recovery would result, upon: i those facts,-if it was shown in-reply, that such -title had ‘l [676] been, before the levy by the defendant, divested in some legal manner, and vested in Pinkston, the defendant in execution. The bill of exceptions does not profess to set out -all the evidence, and we can not presume -that it does. S. M. Ins. Co. v. Holcombe, 35 Ala. 327. As the facts upon which the plaintiff, in the charges asked, predicated his .claim to a verdict, were of such a nature that their legal effect would be susceptible of being avoided by other facts; and. as the bill of exceptions does not inform us whether or .not such other facts existed, we can not decide that the refusal of those charges was erroneous. We-can not presume, for the purpose of attributing error to the-court, the non-existence-of the facts requisite to justify those refusals. — Phillips v. Peteet, 35 Ala. 696 ; Rupert v. Elston, ib. 79 ; Wyatt v. Stewart, 34 Ala. 716 ; Duckworth v. Butler, 31 Ala. 164. £10.] In refusing the 'fifth charge requested, the court erred. A party is not estopped from denying the aver-ments of a bill in chancery, although sworn to, when they are offered in evidence, in an independent suit, against such party. The charge was not abstract; for the bill of exceptions sets forth evidence of -a .payment for the slave, in a bill of exchange accepted by Mrs. Harper, which had been collected by McLemore from «the acceptor. From what-has already been said, as to the admissibility of the execution in evidence, it resalts that the 6th, 7th, and 8th charges requested, were properly refused. There was no error in giving the charge which was asked by the defendant. The reasons are indicated in our remarks as to the first charge given. Reversed and remanded.