Harrell v. Floyd , 3 Ala. 16 ( 1841 )

ORMOND, J.

The questions presented on the record, are first, the propriety of the judgment of the court refusing to exclude the execution on defendants motion.

Second. The rejection of the witness, Hatton, on the motion of the plaintiff.

Third. The rejection by the court, of the record of the county court, as evidence to the jury.

1. It is settled as the law of this court, that in trials of right of property, 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. Such an inquiry being considered as foreign to the issue between the parties. [See Stone v. Stone, 1 Ala. Rep., N. S. 582. Bettis v Taylor, 8 Porter, 564.]

2. The reason assigned for the rejection of the witness Hat-ton, was that he had married the widow of a former co-executor of the claimant, on whose behalf the witness was called. It is difficult to perceive how this statement of facts could raise a presumption that he had any interest in the event of the cause. To make him interested, two other facts must be assumed. That the executor whose widow he married had waisted the assets .of his testator, and that the witness had received by the marriage, an estate which was chargeable with such devastavit. As these facts are not shown to exist, and as they do not follow as a necessary consequence of the marriage of the witness with the widow of the deceased executor, the exclusion of the witness on that ground was erroneous.

3. The rejection of the record of the County Court presents a question of much graver import. The claimant appears to have derived his title to two of the slaves in question (and the other two are said to be issue born since, though that fact does not appear on the record,) by a purchase at his own sale -,.f the estate of his testator in February, 1828. The evidence offered, consists of the return of the sale to the County Court, signed by the executors and recorded, upon which the claimant is set down as the purchaser of two of the slaves; and also what purports to be a final settlement of the estate by the Judge of the County Court with the executors, in which they arc charged with the proceeds of the sale of the slayes in February, 1828.

The question before the court below on this motion was, the relevancey of the testimony; its legal effect, or whether sufficient without the aid of other proof, to support the issue, could only come in question on a motion for instructions to the jury.

The rejected testimony was a record of the County Court in relation to the slaves in controversy, upon a subject, over •which it had undoubted jurisdiction,, and was therefore clearly relevant, and should have been admitted. The learned counsel for the defendant in error, maintains that the record was properly rejected, because there was no proof that the sale of the slaves was advertised, or that any of those steps w7ere taken which the law requires in such cases, and without which, he insists that the sale is a nullity.

If this argument were admitted to be correct, it will not follow that the evidence was properly rejected. We are not informed that the whole proceedings relating to this estate in the County Court of Madison, are before us, and therefore it may be, that there is record or other proof of the facts in the power of the party to produce, the absence of which from the record, is now complained of. It is in the discretion of a party, to array his testimony in the order his judgment dictates, and if relevant, it cannot be rejected, because it does not support the 'issue, unaided by other proof.

The rejected testimony in this case, was relevant, and should have been admitted; the influence it was calculated to exert in the cause, or whether it was of any value, unaided by other proof, are questions not presented on the record, and therefore we abstain from the expression of any opinion concerning them

Let the judgment be reversed and the cause remanded.