Stone v. Stone ex rel. Underwood , 1 Ala. 582 ( 1840 )

GOLDTHWAITE, J.

— 1. The witness, Newton, was called to support the title of the claimant to the trust property, conveyed that certain debts might be provided for; and among them is one due to a firm of which the witness was a partner. This, is not like the case of a creditor of a decedent’s estate, who is called as a witness to support a suit by the administrator, because the interest of the creditor is uncertain, whether the estate is solvent or otherwise; but here, a specific appropriation is made, of at least a portion of the debtor’s estate to which the witness is entitled to resort, if the deed is valid, to the exclusion of all who are not preferred in the same manner as himself. Illustration js however, unnecessary, because the question is concluded by the decision of the court in the case of the Bank of the State of Alabama v. McDade, (4 Por. 252,) which settles, that a person occupying this relation is not a competent witness.

2. The second exception taken in the circuit court, is too vague and indeterminate to authorize a reversal, even if we were satisfied that the court erred. It is the duty of a party complaining of error, to show such a state of facts before the jury, that injury to his rights most probably resulted from the erroneous action of the court; and if the exception is so uncertain as to leave this doubtful, an appellate court ought never to reverse.

The position assumed by the circuit court is not necessarily erroneous, although it might be under peculiar circumstances. The witness Overstreet, was probably offered, to show his indebtedness to Brodnax & Newton, but having unexpectedly denied being indebted, he is then asked the question, which was objected to; the answer to this question would lead to no conclusion, without other evidence, for if such an order was drawn, the legal presumption would be, that it was drawn against funds; if it was intended to show by the answer, thalOverstreet was a debtor, by means of this order, then it was not proper to give evidence cf it, unless its absence was properly accounted for. In this view the action of the court would have been entirely correct. On the other hand, if the question was asked, in order that thes answer might show the witness to have been mistaken when he made the denial of indebtedness-, it would be proper and subject to no just exception. In the condition in which this point is left by the bill of exceptions, too much is necessary to be inferred, and too little is staled to warrant the conclusion that t-he court-erred in this particular.

3. The only remaining point raised o-n the record is within the principle settled in Bettis v. Taylor (8 Por. 564,) in which it was held, that a claimant is not permitted to question the validity of the judgment, or the regularity of the execution under which the property is sought to be condemned, as those inquiries are foreign to the issue between the parties. A payment is as entirely without the issue as any other matter which can be conceived. Judgment affirmed.