Walker v. Blassingame , 17 Ala. 810 ( 1850 )

DARGAN, C. J.

This was an action of detinue, brought by Jesse Blassingame against Martha Walker, to recover three slaves., Jude and her two children. A judgment was rendered in favor of the plaintiff for the slaves or their alternate value. In the progress of the trial, a bill of exceptions was sealed by the presiding judge, from which it appears that the slave Jude originally belonged to David Walker who is now dead, that the defendant is his widow, and that the plaintiff intermarried with his daughter. The plaintiff introduced A. R. Barclay as a witness, who testified that in a conversation he.bad with David Walker, at his house, in the year 1837 or 1S38, Walker stated that he had given the negro girl Jude to his daughter, the wife of the plaintiff, and that the plaintiff came to carry her home, but about the time he was starting, she gave him the slip, or slipped aioay from him. At the time of this conversation, Walker was in possession of the slave Jude, and continued in possession until his death. This witness further stated that lie-had frequently heard David Walker make the same statement, or statements of like import, at different times between the years 1837 and 1S43, but could not state the precise time or place when and where such statements were made, nor who was present, except the statement made in the conversation at the house of Walker, when the defendant, who was his wife, was present. The defendant objected to-the declarations of Walker going to the jury as evidence, on the ground that the witness did not remember the time and place when made, nor who was present, but the court overruled the objection and the defendant excepted*

If there was no other evidence .of title introduced by the plaintiff than the declarations of Walker, it would be very clear that the plaintiff had failed to make out his case ; for it is a well settled rule of law that to perfect a parol gift of personal property, the donor must deliver possession either to the donee or to some one for him. The donor must part with the possession and control of the property, and if he do not, the gift is incomplete, and the donee cannot maintain an action against the donor or those those claiming under him to recover possession.— Phillips v. McGrew, 13 Ala. 255; Pope v. Randolph, adm’r, ib. 214; 1 Stewart & Port. 56; 2 Ala. 117. Bint the objection to the evidence does not present the question of its sufficiency to establish a title in the plaintiff in the absence of all other proof,. nor is the legality of the evidence on that ground objected to? the sole ground of the objection is that the witness could not state the time and place when and where these declarations were-made by Walker, nor who was■ present, except only the statement made at Walker’s house, further than that they were made-between the years 1837 and 1843. We must, therefore, confine ourselves to this ground of objection j for it is the well settled rule that if evidence be objected to for specific reasons or grounds stated by the party objecting, we can only examine-whether those reasons or grounds render the evidence illegal.— Creagh v. Savage, 9 Ala. 959. Indeed, the specification of the grounds of objection to testimony must be considered as an-admission that the evidence in other respects is legal; otherwise, the party objecting might frequently reverse a judgment on a point never decided in the court below, and which, if presented, the other party might have avoided, by waiving the testimony objected to, or rendering it competent by the introduction of other proof. Looking then to the ground of objection alone •raised in the court below, there was no error in refusing to exclude the testimony. The declarations of a party in possession against his interest are evidence against himself, and those who claim under him, and this is the character of the declarations objected to by the plaintiff in error. That the witness who testifies to such declarations cannot remember the time when or the place where they were made, is a circumstance going to the credibility of his testimony, but it cannot, render the declarations themselves inadmissible.

The defendant then offered to prove, that at many other times, both before and after the times spoken of by the witness, Walker had stated that he had not and did not intend to give the slave Jude to the plaintiff’s wife. The plaintiff objected to the admission of these declarations and the objection was sustained. The question presented by the exception has been so often decided by this court that it cannot now be considered open to controversy. We have repeatedly held that the declarations of one in possession, explanatory of his possessiqn, as that he held in his own right, or as agent or tenant of another, or that he claimed the property absolutely or in fee, or other less estate, are admissible, as showing the extent or character of his possession. — McBryde & Wife v. Thompson, 8 Ala. 650; Gary v. Terrell, 9 ib. 206; Mawhinney & Smith v. Thompson, decided at the present term. But when the declarations are not merely explanatory of possession, but are offered to disprove a title derived from the declarant, as that he had given no title, or that the conveyance was fraudulent, they are inadmissible as evidence in favor of the party making them. — Powell v. Olds, 9 Ala. 865; Nelson v. Iverson, at the present term, and cases there cited. Tested by these well settled principles, the court did not err in rejecting these declarations.

In reference to the question growing out of the refusal of the court to grant a new trial, we will merely say, that it is a matter purely of discretion in the court below, whether a new trial shall be granted or not. — Spence v. Tuggle, 10 Ala. 538. It being a matter of discretion, the court may impose terms on the party in whose favor the verdict is rendered, as a condition upon which the motion for a new trial will be refused, and if the party comply with these terms and a new trial be refused, the grounds of the refusal cannot be reviewed in an appellate court. There is no error in the ruling of the court,, and the judgment must be affirmed.