Berry v. Hardman , 12 Ala. 604 ( 1847 )

COLLIER, C. J.

In McBride and wife, et al. v. Thompson, 8 Ala. R. 650, we said, “ the affirmation of the party in possession, that he held in his own right, or under another, is proper evidence as part of the res gestae,” where the res gestae was “ his continuous possession; but his declarations beyond this, are no part of the subject matter, or thing done, and cannot be received as such. While it is allowable to prove the statements of one in possession and explanatory thereof, it is not permissible to show every thing that may have been said by him in respect to the title ; as that it was acquired bona fide, and for a valuable consideration; was paid for by the money of a third person, or his own, &c. This we have seen, instead of being part of the res gestae, would be something beyond and independent of it.” In Goodgame v. Cole & Co., at this term, a material question considered, was whether the declarations of the purchaser were admissible upon a contract of sale, and it was there held competent to show all that the vendee said at that time touching the subject matter. It is a necessary result of the recognition of this principle, that it may be proved the ven-dee said he was purchasing for himself or another, and how, or with whose means he would pay for the property. That case is distinguishable from the case first cited, and others depending upon the same facts, on the ground that the res gesta which the declarations were intended to explain, was different. In the one it was the possession, in the other it was the sale and purchase under which the possession was acquired. The subject matter of the latter was more expansive — embracing not merely the conclusion of the bargain by the respective parties to the transaction; consequently, what was said pertinent to the treaty between them — the declarations as to the means of payment, whether the vendee acted for himself or another, may well be considered a part of the res gestae.

It was conceded in the case last cited, that such evidence was not entitled to any influence^as proof of consideration, if the debt to the attaching creditor existed when the sale took place. Yet the declaration of the vendee would be most potent to show that the purchase was made for the benefit of the trustees, upon proof being made that the means of payment were furnished by them, or taken from their estate. In this view then, the claimant might have been prejudiced by their exclusion, and it therefore follows that they were rightly admitted.

The charge of the court is not as well expressed as it might have been, >yet it must be understood in reference to the evidence in the cause. The liability of the property to the attachment was resisted by the claimant, by the introduction of the deed to him in trust for others, and extrinsic evidence in support of it. In instructing the jury, that if the slaves in controversy belonged either to the claimant or his cestui que trust mentioned in the deed, then they were not subject to the attachment, the court could have meant nothing else, than if the deed had been so established as to make it operative against the plaintiff, he was not entitled to a verdict. It was not intended as an instruction to the jury, that the claimant might resist the condemnation of the property, by showing a title in the cestuis que trust, independent of the deed. Nothing of the kind appears from the bill of exceptions to have been attempted; and it cannot be supposed that the jury were induced by the terms in > which the charge was expressed, to speculate about matters to which there was no evidence, or that they could have been diverted from the only material inquiry. There is then, no error prejudicial to the plaintiff, and the judgment of the circuit court is consequently affirmed.