McGuire v. Shelby , 20 Ala. 456 ( 1852 )

GOLDTHWAITE, J.'

The first question presented by tbe record in this case, arises upon the objection made to the admissibility of the deposition of Bezant Holley. The action was brought by the defendant in error to recover a slave, and one of the grounds on which, as the record discloses, he based his right to a recovery was, a deed of assignment executed by one Thomas L. Holley, conveying to him in trust, for the benefit of his creditors, the slave in controversy, and other property. The objections in the court below against the admissibility of testimony, were founded on proof made to the court that the witness was the son of Thomas L. Holley, who was dead at the taking of the deposition; and if the action of the court below, in overruling the objections taken to the evidence, had been based upon this state of facts alone, it would clearly have been erroneous. Under the assignment, the assignor was entitled to the excess remaining after the application of the property conveyed to him to the discharge of the debts specified in it, and this would have rendered him incompetent as a witness. Stewart v. Fowler, 3 Ala. Rep. 629. The same reasons which rendered the assignor incompetent, would exclude a distributee of his estate, as the tendency of his evidence would be to increase a fund in which he would be entitled to participate.

It was proved, however, that the estate of Thomas L. Holley, before the testimony of the witness was taken, had been reported and declared insolvent by the proper court; and the decisions of this court in the cases of McKinney v. McKinney, 2 Stewart, 17, and Tatum v. Manning, 9 Ala. Rep. 144, are conclusive in establishing the rule, that where a witness is prima fade incompetent,- from being interested in a fund which his testimony tends to increase, his interest may be disproved by showing that the fund can be productive of no benefit to the witness. Under the influence of this rule, the only question upon this point is, as to the couclusiveness and effect of the decree of insolvency, considered with reference to the purpose for which it was received; or in other words, does the decree of insolvency, considered as evidence only, rebut the presumption of interest arising from the position occupied by the witness in relation to the estate. Under the statute which regulates the proceedings upon insolvent estates, the personal representative of the deceased, and the creditors of the estate, are the only parties; and whatever may be the real situation of the estate, the court is bound to declare it insolvent, whenever it is so reported by the personal representative in the mode required by the statute, unless the report is contested by a creditor. Clay’s Dig. 192, §§ 2, 3, 4. No notice is required to be given, save to the creditors; no one but a creditor is allowed to contest; and indeed it is apparent, from the purport of all the statutes in relation to this subject, that the decree of insolvency was intended simply to declare the status or condition of the estate, as between the personal representative on the one part and the creditors on the other. Whatever may be its effect upon the estate itself, we are clear that as a matter of evidence, except as to the parties, and to sustain proceedings under it, it is a mere nullity. The distinction between the case of Tatum v. Manning, previously cited, and the case under consideration, is obvious. In the one, the evidence offered was to prove that the estate was in fact insolvent; in the other, that it had been reported and declared insolvent only. It is unnecessary to consider the question as to the competency of the witness, in the other aspect in which the plaintiff below presented his right to recover on the assignment. Conceding that his right to recover rested upon distinct and separate grounds, so long as he insisted on both, the incompetency of the witness on either would have been sufficient to exclude him. It follows that the court erred in the admission of the deposition objected to.

2. The possession of Johnson under the mortgage from Holley, was in subordination to the grantor, at least until the law day had passed, and could not be considered as adverse to him. Herbert v. Hanrick, 16 Ala. Rep. 581, and cases there cited.

3. Neither do we think the court erred in refusing the several charges as requested. The first, by the use of the term conveyance, asserts the proposition that the title to personal property could not pass by parol, and all the others are inconsistent with one of the positions occupied by the plaintiff in the court below, and growing out of the right to recover upon the previous possession of the slave in controversy, which the evidence tended to show had been recognized and admitted bj Adams. No proposition can be clearer on both principle and authority, than that when one is in possession ■of personal property, and another obtains it from him by fraud, it is no answer to a suit for such property, by the party thus deprived of possession, to show that it was fraudulently acquired by the plaintiff in said suit, without connecting such fraud with his own title. Dunklin v. Wilkins et al. 5 Ala. Rep. 199; Traylor v. Marshall, 11 Ala. Rep. 460. In this view of the case, the plaintiff in error, claiming through Adorns, does not occupy a position which would authorize him to raise the questions sought to be presented by the several charges referred to, and they were therefore properly refused. The points decided will in all probability determine the case on a subsequent trial, and for that reason we deem it unnecessary to express an opinion on the other points presented by the record.

For the error of the court below in the admission of the testimony of the witness Holley, the judgment is reversed, and the cause remanded.