Jones' Ex'rs v. Hoskins , 18 Ala. 489 ( 1850 )

DARGAN, C. J.

1. It is contended that Mrs. Nancy Jones was incompetent to testify on the part of the complainant, because she was interested in sustaining his title to the slaves in controversy. If we were to admit, for the sake of argument, that her purchase from the executors and her subsequent agreement that they should retain out of the legacy, bequeathed to her by the will of Arthur Jones, her husband, an amount equal to the purchase money agreed to be given for the slaves, does make it to her interest that the title of the complainant shall prevail, still, we think it beyond doubt that .such an interest, acquired as this was, cannot deprive the complainant of the benefit of her testimony. It is true, that an interest acquired by a witness in the event of a suit, after the matter or fact happened, to which he is called to give testimony, may render him incompetent. — Greenl. Ev. 1, § 418. But whether an interest, subsequently acquired by the witness, will render him incompetent or not, must depend upon the mode and manner of his acquiring it, and in some cases upon the intent with which it was done. Yet we apprehend no case can be found that would sustain the doctrine, that one party, after a suit was instituted, could sell the subject matter in dispute to a witness, without the assent of the other party, and by such sale deprive him of the benefit of his testimony. Such a rule would, in our judgment, be not only opposed to sound policy, but would often lead to the perversion of justice. In the case of Woodhull v. Ramsay, 3 Johns. Cas. 235, the court said, “ The interest which will exclude the witness must not have arisen after the fact, to which he is called to testify, happened, by his own act, without the interference, or consent of the party by whom he is called; because if this were the rule, it would be in the power of the witness, and even of the adverse party, to deprive the opposite party of the benefit of his testimony.” This authority was recognised by this court ir> the case of Napier v. Cook, 9 Ala. 838, and seems to be fully sustained by the decisions of the American courts. — See the cases collected in Cowen & Hill’s Notes to Phil. Ev. 273. This view renders it unnecessary to decide whether the purchase of Mrs. Jones did in fact render her an interested witness.

2. Nor is there any thing in the objection, that by the conveyance of the witness to the complainant, she warranted the title to the slaves, for this conveyance was purely-voluntary, and no recovery could be had for a breach of the warranty, inasmuch as the complainant paid nothing and has not suffered any injury or loss in consequence of it. Independent, however, of this, the witness was released from- the warranty before she was examined upon the .last commission.-

3. Mrs. Jones was a competent witness-, and her testimony fully shows that previous to her intermarriage with Arthur Jones, she informed him of her intention to convey the slaves to her son, and that he approved of it, and never during his life claimed more than a life estate in the slaves. This testimony establishes the right of the complainant to the slaves, after the death of Mrs. Jones, his mother, and to this extent the decree should have been in his favor. But the chancellor erred, in holding that the sale by the executors, purporting to be a sale of the entire title, produced a forfeiture of their right during the life of Mrs. Jones. Without entering into an argument to show that a sale of a chattel by one, having but a life estate or other less interest, does not produce a forfeiture of that interest, although the sale purported to convey the entire title, we will simply refer to the case of Lyde v. Taylor et al., decided at the last Term, in which we held that a sale of a slave by one having a life estate conveyed to his vendee his interest merely. For this error, the decree must be reversed, but as we can here render the decree that the chancellor should have rendered, it becomes our duty to do so without remanding the cause. It may, however, be observed that the decree in favor of tne com-, plainant upon his original and supplemental bill may entirely annul the contract of sale between the executors and Mrs. Jones, who purchased pendente lite, and entitle her executor to have the notes cancelled, he paying or accounting for the value or hire of the slaves from the time she came into possession of them, until her death. These equities, however, between the parties, cannot be settled in the present suit. If they cannot be adjusted between the parties without suit, they must be brought before the court in another suit, in which they can be properly put in issue.

The decree of the chancellor is reversed, and this court proceeding to render such decree as should have been rendered in the court below, it is ordered, adjudged, and decreed, that the right and title of the complainant to the slaves in controversy, after the death of his mother, Mrs. Nancy Jones, be established, and that he be entitled to have and hold them in his own right, free from the rights and claims of all others; and further, that he recover of the executors of Arthur Jones, deceased, all the cost of this suit in the court below, but that the plaintiffs in error recover of him the cost of this court.

Parsons, J., not sitting.