Tatum v. Manning , 9 Ala. 144 ( 1846 )

GOLDTHWAITE, J.

1. There is some conflict of decision upon the first point made in this cause ; both as to the. rule itself, and its application to particular cases. [See Cowen & Hill’s Notes, 1539.) With us, however, in McKinney v. McKinney, 2 Stewart, 17, a distributee is held incompetent, prima facie, to testify in behalf of the personal representative; yet, in that case, it is conceded, such a witness may he sworn, when it is shown affirmatively, that he has no actual interest in the estate. Without stopping to inquire whether the same rule governs the witness, when the personal representative is not a party to the suit, but may be charged by reason of it, we remark, that here the exception shows the prima facie intendment of interest was rebutted by proof that the estate was insolvent. It being thus shown, that there was no fund to distribute, the apparent interest of the witnesses was disproved, and, in our judgment, their depositions should have been allowed to go to the jury, in this aspect of the proof. See Cowen & Hill’s Notes, 1541, 114 to 119, where many eases to this effect are collected.

2. The next is a more important question, as it requires the examination of our statute of frauds, in a view which hitherto has not arisen. The cases of Myers v. Peek, 2 Ala. R. 648, and Oden v. Stubblefield, 4 Ib. 40, establish that a reservation by the grantor, or donor, is void, under the statute, when the precedent estate is not -supported by a valuable consideration, and the first taker has continued in possession for moré than three years. On the other hand, those of The Bank v. Croft, 6 Ala. R, 622, and Johnson v. The Bank, 7 Ib. 379, settle, that a conveyance of property, bona fide, for a valuable consideration, although for a determinate period, which is extended for more than three years, furnishes nothing for the- operation of the statute. It is unimportant to quote the statute here, as it is set out in terms in the case first referred to, but it may be proper to remark, that one of its chief objects seems to be to cut off all reservations, limitations, remainders and conditions annexed to personal property, voluntarily conveyed by the grantor, and in which a present interest in possession is vested in some individual, unless the deed is registered in a particular manner. The precise question then is, does the conveyance of the slave to Manning, the father, come within the letter or spirit of the statute ? It is evident enough, that the title of the son arises out of the donation to him; and it seems equally clear that the slave is to to be considered as a donation from the distributees of Spalding, rather than from Spalding himself, inasmuch as the intention of the latter was never consummated, or efficiently declared in' his lifetime. The title to the slave. devolved upon whomsoever might be appointed as his personal representative, and the rights of all parties may be consided, as they would be if the personal representative, acting under the instructions of the distributees, had conveyed the slave to Manning, the father, until his son should attain the age. of 21, with remainder to the son after that period. This conveyance, so far as the elder Manning was concerned, would be sustained by a valuable consideration; that is, the slave for this determinate period, was conveyed in consideration of the distributive share to which he was entitled. The precedent estate in the slave being supported by a valuable .consideration, and being bona fide, would sustain a reversion to the^ grantor, within the principles established in the cases of Croft and Johnson, previously cited, and it therefore becomes unimportant to consider, so far as the construction of the statute is in view, how that reversion is after-wards disposed of. The circumstance, that instead of reserving the remaining interest in the- slave, to the distributees, that is given by them at the same time to the son, is the one Avhich creates all the difficulty here ; but, in our judgment, it is the same in legal effect, and in its consequences, as if the remaining interest in the slave had been reserved to the distributees themselves. We come to the conclusion, there was no error in this regard, in the charge to the jury.

3. The measure of damages, in an action of trover, is the value of the chattel at the time of conversion, or at'any time between that and the time of trial. [Steph. N. P. 2711; Greening v. Wilkinson, 1 C. & P. 625.] The precise question, we believe, has not distinctly .arisen in this Court, though the rule as stated, seems to be conceded. In White v. Martin, 1 Porter, 215, and in Strong v. Strong, 6 Ala. Rep. 345, it is said, the plaintiff may always avoid the. difficulty .of; assessing the value by bringing detinue. In South Carolina, the rule with respect to slaves is so modified, as to allow the value of their labor to be recovered in addition to their value. [Banks v. Hatton, 1 N. & McC. 221.] But we are not aware of any reasons applicable to slaves, which may not be applied to all other chattels capable of use. We think the harmony of decision is better sustained by recognizing the saíne rules as governing all- descriptions of chattels. Indeed, it is evident, that the defendant to an action may not have realized the value of the hire, from slaves which he honestly supT posed to belong to himself. Independent of such considerations, however, our opinion is, that the reason given in Strong v. Strong, applies equally here, and that the action of Retinue should have been selected, if damages for the detention of the slave, was in part the object of the suit. As the charge with respect to the measure of damages is different from that which the law gives, there is error also in this particular.

For the causes we have noticed, the judgment is reversed, and the cause remanded.