Inge v. Murphy , 10 Ala. 885 ( 1846 )

GOLDTHWAITE, J.

1. Previous to the consideration of the principal questions argued at the bar, it is as well to dispose of one which has been incidentally adverted to by the counsel for the plaintiff. It is, that as the slaves were in possession of Dr’. Inge, after his marriage, and before the execution of the deed by Mr. Bullock, they must be considered as passing to the Dr. by virtue of his marriage, as a gift to his wife. The answer to this is, that no such presumption can possibly arise, as the doctor himself seems even to have conceded his title arose under the deed, and his acts and declarations effectually conclude his assignee from asserting a title independent of it.

2. With respect to the deed, if the title of Dr. Inge is derived under that, both parties concede the law of North Carolina must govern its exposition, it being the common source of title. We understand the defendant, however, to insist, the legal presumption is, the common law is in force there, and that it must be applied as understood in our own courts, uninfluenced by alterations it may have undergone by reason of the decisions of the courts of that State. It is certainly true, the general presumption is, the common law prevails in those States of the Union of the same natural origin with our own — [Goodwin v. Griffin, 3 Stew. 160; Holmes v. Broughton, 10 Wend. 75; Walker v. Maxwell, 1 Mass. 103; Legg v. Legg, 8 Ib. 99 ;] — yet we cannot be supposed ignorant of the circumstance, that local usages and other causes, have introduced modifications, more or less important, in most of the States. If then, each State was to apply the common law, as understood in its own courts, to ascertain the rights of parties originating in other States, and of course to be interpreted by the law of that State, these rights, instead of being uniform in all the States, would be as variant as are the modifications of the common law in each of the States. Hence arises the necessity for some common rule, to which all can refer; and this is to be found only in the law as understood in the State where the rights originate. This principle is recognized by all the elementary writers, nor do we understand any decided case cited by the defendant’s counsel as controverting it. Those referred to merely held,'that it rests with the party asserting the modification of the common law, to show that matter by proof. To the same extent is the decision of this court in Goodwin v. Griffin, before cited. We shall assume then, without further discussion, that the rights of these parties, so far as derived through the deed of Mr. Bullock, must receive the same consideration here as they would have received in North Carolina, at the date of the conveyance.

3. Having ascertained that the law of North Carolina is to furnish the rule by which to measure the rights of these parties, as derived through the deed of Mr. Bullock, it becomes necessary to inquire how the court and jury was to be advised of that law. We have already seen the prima facie presumption is, that the common law prevails in that State, (it being of common natural origin with our own,) and this presumption must prevail, unless a different rule is shown to exist, either by some modification of that law peculiar to that State, or in consequence of some statute. The ordinary mode of proving the unwritten laws of a foreign county is,. by the testimony of witnesses instructed in that law. [Greenl. Ev. 480; Story’s Confl. L. § 641, 642.] But this seems not to be the only means for obtaining the requisite information, and the ecclesiastical and admiralty courts of England sometimes act on the certificate of officers accredited by the government where laws are certified. In Re Dormey, 3 Hagg. 767; The Diana, 1 Dod. 96; see also, Talbot v. Seaman, 1 Cranch, 38. Both the authorities previously quoted refer also to the case of Rex v. Picton, 30 Howell’s State Trials, as a decision on the same point, but whether this is a decision at common law, or in the admiralty, we have no means to ascertain. With respect to statutes of our sister States, many courts, as well as our own, hold these are proven prima facie by the production of the statute book, purporting to be published by authority of the State. [See cases cited Greek Ev. 489.] If the statute laws of a sister State may be thus proved, we cannot perceive a sound reason why the common law, as modified by the decisions of the State courts, may not be proved by the production of the accredited reports of these decisions. We every day elucidate our own common law by referring to these reports, and it would seem a singular anomaly if they cannot be admitted as evidence to show to what extent the local decisions of a particular State, of which they are the accredited exponants, have modified the common law. For accuracy of information, such reports seem equal at least to the testimony of witnesses, which, however respectable the individuals may be, must chiefly, if not entirely, be founded on information derived from the same sources. In Dougherty v. Snyder, 16 S. & R. 85, it is said, by the supreme court of Pennsylvania, that unwritten laws may be proved as well by public history, and decided cases, as by witnesses. And in Raynham v. Canton, 3 Pick. 293, and McRae v. Matton, 13 Ib. 87, books of reports of a sister State are conceded to be proper evidence. We have looked at the other cases cited, but do not find them to bear on the point, except that in Lattimore v. Elgin, 4 Dess. 26, it seems the chancellor considered the law of Maryland was sufficiently established by a quotation in Haywood’s North Carolina Reports; nor have we been able to find any express adjudication in which the precise question is decided. But the reasons we have previously stated, lead us to the conclusion that the common law, as modified in a sister State, by judicial decision, may be proved by the production of the reports of adjudged cases, accredited in the particular State.

4. But when the evidence of the law of N. Carolina was shown, was it to be submitted as a fact to the jury to decide, or to the court, that the judge might instruct the jury how far the rights of the parties were affected by it ? This is another, and not the least important question in this case. It seems to us almost a self-evident proposition, that laws, whether written or statute, domestic or foreign, must be ascertained, in the general, and always construed by the court ,• and equally so, that it is manifestly not the province of the jury to place the construction upon it, under any circumstances. If the rule was otherwise than stated, it would be hazardous in the extreme; for the court trying the cause would be ignorant whether the verdict was given because the facts were mistaken, or the law misconstrued, and there would be no means to correct an error, if the jury put an improper construction on the law. There is a strong analogy in this respect between written stipulations binding the parties and laws which are obligatory on them. In the former case the writing is said to be the law of the contract, &c., and in the latter it is so without any stipulation, and in this respect it matters not whether the writing is executed in one country or another, it is alike to be construed by the court, and not by the jury. The rule with reference to proof of the execution of a deed, is in the first instance to the court, and it is only in case of doubt or contest that the question of execution goes to the jury to decide. See cases collected in C. & H. Notes, 1310. We have met with but one case where it is said, the construction of a foreign law may be submitted to a jury, and there it seems rather a casual expression than a decided point. [Bracket v. Norton, 4 Conn. 638.] Mr. Justice Story states, the principle in relation to foreign laws in the broadest manner, and is fully sustained by the cases which he cites. [Story Confl. L. § 638.]

5. Having ascertained the principles upon which this case should be determined, so far as the admission of evidence of the law of North Carolina, it is as well here as elsewhere, to declare the necessity that the cause should be sent to another trial, in order that the circuit court may give instructions to the jury upon that law, as it may then be'ascertained. For ourselves, we must decline to examine the question of what the law is, or what is the legal effect of the decisions of the North Carolina courts, upon the rights of the parties, until these matters shall be first decided by the court of original jurisdiction. It is not improper, however, to remark, that as the prima facie presumption is, that the common law prevails in North Carolina, the evidence of its modification, or change, rests with the party asserting the change, and to establish it, the decisions of the courts must be looked to in the same manner as we would look to our own in the event that witnesses are examined, who rest their opinions oh decided cases, and who may notwithstanding disagree in the conclusions to be drawn. It is scarcely necessary to say that the circuit court erred when the construction of the laws of North Carolina, to be drawn from the decisions before the jury, was left to them to decide.

6. There are however several other matters involved in this case, which require some further consideration. And first, with respect to the refusal of the court to charge on behalf of the defendant, that his silence when hearing that his father had conveyed the slaves sued for, and the participation by him in the trust funds raised under the deed, was no estoppel. Under the evidence disclosed, we think this whole matter was of no importance whatever, as bearing on the right of the defendant. Conceding he was aware of the execution of the trust deed, and its terms, he was not required in law to express any opinion upon it. Conceding his right to the remainder in the slaves, yet his father was entitled to the life estate, and that was a subject which he might legitimately convey. The question is not between a purchaser under the deed, and one claiming a remainder, who has stood by and seen the holder for life convey absolutely. Whatever the equities of such a purchaser might be, the plaintiff is not such a one. And as an objection from the defendant after the deed was executed could not affect its validity, no inference to aid the grantor can possibly be drawn from the omission of the defendant to dispute it before his title, if he has any, vested by the determination of the life estate.

7. The same remarks, in a great degree, apply to his acceptance of benefits under the deed. If he knew of its express terms, there is nothing in it to prevent his acceptance of monies arising out of the sales of other property, for the reason we have already stated, that Dr. Inge was entitled to convey his life estate, and the defendant was not bound to be active until that was determined. It follows then, that the court below should not have left this matter to the jury to draw their own conclusions, but they should have been instructed this circumstance could not affect the title of the defendant, if he had any.

8. Another point on which the court erred, was in leaving it to the jury to consider whether the defendant had not abandoned his interest in the property, by receiving a portion of it during the lifetime of Dr. Inge, or by assenting that he should convey it under the deed in evidence. What the effect of express assent to the conveyance would be, we are not called on to say, for none such is shown, but we can say, that such assent could not be legitimately presumed from the facts before the jury.

9. With the notice of another matter, we shall conclude this opinion. It is urged by the plaintiff, that the possession of the slaves by Dr. Inge, in this State, for more than three years, without the deed being recorded as provided by our statute of frauds, invests a purchaser from him with an indefeasible title. This point, whatever may be its merits, was not put before the jury by any request for instructions, nor was any charge given by the court. In this predicament of the suit it is equally improper to be decided, as is the question respecting the construction of the laws of North Carolina. When the entire case is again before the jury, it is probable all these questions will be again mooted, but we are not authorized to anticipate the decision.

Let the judgment be reversed and the cause remanded.