Fairly v. Fairly

Handy, J., delivered the opinion of the court. This action was brought by the plaintiffs in error, as administrators of Margaret Fairly, deceased, to recover certain slaves, alleged to be the property of the intestate, in the possession of the defendant. The questions presented for consideration here arise upon exceptions taken to the rulings of the court upon various points of evidence raised on the trial, to the rulings of the court upon the instructions to the jury asked by both parties, and to the overruling of the plaintiff’s motion for a new trial. The errors assigned upon these points will be considered in their order. The first error assigned is the ruling of the court that John Fairly was an interested witness. That witness was a brother of the plaintiff’s intestate, and one of the distributees of her estate. But he had executed a deed releasing and conveying all his interest in the estate to his children and grandchildren; which was produced and shown on the trial. That conveyance was in no wise impeached; and it clearly divested him of all legal interest which he had in the subject-matter of the suit. It was, therefore, error to hold that he was interested in the suit. And this error was not cured by the ruling of the court/in permitting him to testify as a person interested in the suit, in virtue of the provision of the Rev. Code, 510, Art. 190 ; for, under the rule thereby established, he testified as an interested witness, and his testimony was liable to be received by the jury with whatever discredit they might think fit to attach to it on that account. The second assignment is, the rejection of the question put by the plaintiffs to the witness Berry on re-examination, whether he was not interested in the suit. That witness was introduced as a witness in chief for the plaintiffs, and examined as such, and was then cross-examined by the defendant; after which the plaintiffs put the question to him above stated. It is true, that if a witness state facts in his testimony which make against the party calling him, that party may contradict him as to facts which are material evidence in the cause, by the introduction of other witnesses; for the object of the additional evidence is not to impeach the first witness, but to'prove material facts in the cause, the impeachment of his credit being merely incidental and — 289 — consequential. 2 Phill. Ev. by Cowan, Hill & Edwards, 982-983. But it is a well-settled rule, that a party shall not be permitted to introduce general evidence for the purpose of discrediting his own witness. Ib. This appears to have been the object of the question under consideration, to show that the witness was under the bias of interest in the suit; and, therefore, that his testimony was unworthy of credit. It comes within the principle forbidding general evidence by a party to discredit his own witness; and that can no more be done by a re-examination of the witness himself, than by the introduction of general evidence to prove his discredit. We think, therefore, that this question was properly rejected. The third error assigned is, the admission of an instrument of writing offered in evidence by the defendant, purporting to be a receipt or bill of sale, executed in the year 1818, by one Portlock to Archibald Fairly, under whom the defendant claimed title, for a slave named Nancy, the mother of part of the slaves in controversy. This instrument was offered in evidence, as a deed more than thirty years old, without proof except the following: the clerk of the Court of Probates of the county testified, that Archibald Fairly offered the instrument for record in-his office shortly after the death of Margaret Fairly, and it was recorded. The instrument also has a written entry upon it by the clerk, showing that it was filed and recorded vin his office in July, 1853. James Fairly testified, that at and before, the death of his father Archibald Fairly, and since his mother’s death, sixteen or seventeen years previously, his father’s papers were kept in a trunk of which Margaret Fairly kept the key, and that she kept her papers there also, all the papers being kept together in the trunk; that she had access to the trunk, and could read and write, and they always lived together, but witness never heard of her claiming any of the slaves, which were in his father’s possession, and he hired them out and received the hire; that since the death of witness’s mother, about eighteen years previously, Margaret Fairly superintended the domestic concerns of his father’s family; that witness first saw the instrument about eighteen years previously, and it was found in the trunk above mentioned after his father’s death. Upon this evidence, the court permitted the instrument to be read in evidence against the objection of the plaintiffs. — 290 — The general rule is, “ that an instrument thirty years old may be admitted in evidence, without proof of its execution; and such an instrument is said to prove itself.” 2 Phill. Ev. (Cowen, Hill & Edwards) 475. But it is not sufficient for this purpose, that the instrument merely hears date thirty years before the time of its production. It is necessary to show that it has been in existence for that period of time; and that may be done, not only by evidence of its execution, by the maker, or of its possession by the party claiming under it for that period, but by circumstances creating the presumption of such existence. Robinson v. Craig, 1 Hill (S. C.), 889; 2 Phill. Ev. 478, notes. And it has been held, that possession of the property in controversy for thirty years, is presumptive evidence of the existence, for that length of time, of a deed produced and purporting to convey the property, if its date does not rebut the presumption. Ib., and Jackson v. Laraway, 3 John. Cas. 283. So the handwriting of certificates of acknowledgment, indorsed upon the instrument, though unofficial, may be proved, and will be prima facie sufficient to show its existence at the date of the certificates. Carhampton’s Lessee v. Carhampton, 1 Irish T. R. 567; Jaehson v. Laraway, supra. But where possession of the property for thirty years, corresponding with the deed, is not shown, and the existence of the instrument for that period is not otherwise established, it is incumbent on the party offering it, to prove its execution. 2 Phill. Ev. 479, 480. Here there is no sufficient evidence of the possession of the slave by Archibald Fairly for the time required. There is no proof of the existence of the instrument for the period of thirty years, the evidence tending only to show that it was first seen by the witness James Fairly, about eighteen years before the trial. It is not clearly shown to have been deposited among the papers claimed as the exclusive property of Archibald, nor that it was in his keeping or under his control for the requisite length of time. It does not appear to have been placed in any legal repository, as an evidence of title in Archibald during the lifetime of Margaret Fairly, nor are there any certificates of execution upon it or handwritings of witnesses proved, showing its execution. On the contrary, it appears not to have been treated as a proper muniment of title by — 291 — Archibald Fairly, until the recent period of his sister’s death, nor does it clearly and satisfactorily appear, that it was really in his keeping, or under his control, whilst it remained in the trunk which was in her possession and under her control. We think, therefore, that the evidence was not sufficient to bring the instrument within the rule admitting ancient instruments as evidence, and that it should not have been admitted. The fourth assignment applies to certain instructions asked in behalf of the plaintiffs, and refused. We will consider them in their order. The twelfth instruction is as follows: “If the slave Nancy was purchased by Archibald Fairly as the agent of Margaret and with her money and for her, and if he took the bill of sale in his own name and without her consent, it Avás a fraud upon her rights; and in contemplation of law, he held the negro as a trustee for her, and if he delivered the possession of the negro to her, then her title Avas complete.” There was evidence on the part of the plaintiffs very clearly tending to show, that the slave named was purchased with the money of Margaret and for her, and that the slave was delivered to her, by Archibald Fairly as her property. If the jury were satisfied of these facts from the evidence, it is very clear that it was no objection to her title that the bill of sale Avas taken in his name; for the slave having been purchased with her means and for her, he held the naked legal title as trustee or agent for her, and she or her administrators had the right to sue for and recover the slave if in his possession. Mitchell v. Mitchell, 35 Miss. 108, and cases there cited. But if he delivered possession of the slave to Margaret, as the instruction states, and as the evidence warranted the jury in believing, it is clear that her title was thereby made complete. The instruction, in either aspect, was clearly correct as a legal proposition, and was directly pertinent to the evidence, and should have been given. The thirteenth and fifteenth instructions are as follows: 13th. “ That in order to convey the title to negro property, no instrument of writing is necessary; and if Margaret Fairly had the equitable interest in the slave Nancy, and if possession was by Archibald Fairly conveyed to her, and if she exercised acts of ownership over — 292 — her, then tbe jury may presume a legal conveyance by Archibald to Margaret.” 15th. “If the jury believe from the evidence, that Archibald Fairly, after the execution of the bill of sale by Portlock to him, conveyed the slave mentioned therein to Margaret, without writing, then the title became vested in Margaret, and the plaintiffs are entitled to recover, unless it be shown that she subsequently parted with the title.” These propositions were clearly correct, both with reference to the evidence before the jury, and the general rules of law, and should have been given. The next assignment is based upon the instructions granted at the instance of the defendant. The 2d is, “ that if the jury believe from the evidence that the deed from Portlock to Archibald conveyed to him the legal title, and that he held possession of said slave Nancy and her increase up to the time of his death, the jury should find for the defendant.” This is erroneous in two respects. 1st. In leaving it to the jury • to determine whether a legal title was conveyed to Archibald, allowing them to determine that it was an absolute legal title; and 2d, in stating that, if he held the legal title, and held possession of the slaves, he was entitled to the property. The evidence, as above stated, tended strongly to show, that he purchased the slave for Margaret, and with her means, and took the conveyance in his own name. If so, he held the mere naked, legal title in his name, the true and beneficial interest and ownership being in Margaret; and in order to divest her of her interest and acquire title in himself, by means of the conveyance being in his name, and of his holding possession of the slaves, it was necessary that his possession should have been accompanied by a claim of property in himself against Margaret, and for a period sufficient to bar the title of Margaret by the Statute of Limitations. This was especially proper to be stated in the instruction, as the evidence tended to show that the slaves, though in the possession of Archibald to a certain extent, were not claimed by him as his property, but were admitted by him to belong to his sister. The instruction was, therefore, erroneous, and should have been refused. — 293 — The 3d instruction is in substance, that the deed from Portlock to Archibald Fairly conveyed the legal title in the slave to him, and vested the property in him and in his children, after the division of the slaves by him among them, unless some conveyance from him was shown. This was erroneous upon the evidence before the jury. For if, as the evidence tended to show, the slave was purchased by him with the money of Margaret, and for her, and the title was merely taken in his name as her agent, he acquired no substantial property in the slave, in his own right, and she was entitled to recover it from him and from his donees, without any conveyance or delivery of possession to her, for the reason above stated. But the instruction is further erroneous, in holding the idea that the legal title of Archibald could not be divested, without a “ conveyance,” by deed or other writing; for that appears to be the import of the instruction. It was at least well calculated to make the impression that such a “ conveyance” was necessary; and in that respect it is erroneous, and should not have been given. The 8th instruction states in substance, that if Archibald controlled, hired, and received the wages of the slaves, with the knowledge and consent of Margaret, these are circumstances going to prove title in him, from which the jury would be authorized to find for the defendant. This was erroneous. If Archibald controlled, hired, and received the wages of the slaves, with the knowledge and consent of Margaret, and claiming to do so in Ms own right, with her knowledge, the instruction might have been proper. But if he did these acts as the agent of Margaret, as the evidence warranted the jury in believing, the instruction was manifestly wrong. As it stands, and considered with reference to the evidence tending to show that he was acting as her agent in the matter, it appears to be liable to the further objection of instructing the jury upon the weight of evidence. The 10th instruction directed the jury, that the recording of a deed for slaves is of itself no evidence of fraud. The 14th instruction asked in behalf of the plaintiffs was upon the same point. Both instructions should have been refused. The recording of the deed for the slave was a circumstance to be considered by the jury, — 294 — in connection with all the other facts shown in evidence, and to be weighed by them in determining the question of the tona fides of Archibald Fairly’s title; and it was not a matter which the court was .authorized to say whether it was evidence of frand or not. The 11th instruction is also erroneous. It instructs the jury that John Fairly was as much interested in the suit as the defendant, and that that interest should be taken into consideration in weighing his testimony. This point has already been considered upon the first assignment of error. The last error assigned is, that the verdict was contrary to the evidence. As the judgment will be reversed, and the evidence will be again submitted to a jury, upon a new trial, we do not consider it proper to express an opinion upon this point at this time. Let the judgment be reversed, and the cause remanded for a new trial.