Barnes v. Mobley , 21 Ala. 232 ( 1852 )

CHILTON, J.

— It is impossible for this court to say, that the Circuit Court erred in charging the jury, that, if they believed all the proof, the plaintiff was not entitled to recover; for the simple reason that all the proof is not set out in the bill of exceptions. It is shown that the statute of frauds of the State of Georgia was read in evidence, and constituted a portion of the proof on which the charge of the court was based.

We cannot judicially know, but that the statute referred to may fully justify the court in the charge, as the gift was made in that state, and the parties resided there when the plaintiffs’ alleged title accrued. It is indispensable, when the party desires to review such charge as this, that the record should state all the proof upon which it was predicated, otherwise this court cannot say the court below acted contrary to law, as the data for such conclusion is not furnished by the bill of exceptions. It has been several times decided, that when the legality of the charge depends upon the proof, the party insisting upon its incorrectness must affirmatively show the error, by setting out the proof in the bill of exceptions. Brewer v. Strong, 10 Ala. 961; Greene v. Tims, 16 Ala. 742; Knapp v. McBride, 7 ib. 20; Jones v. Stewart, 19 Ala. 701.

2. We think the court misconstrued the application of the rule, that the declarations of a party in possession, explanatory of such possession as showing tbe character in which he held, are admissible only for that purpose, and cannot be allowed as proof of title, as settled in the case of McBride and wife v. Thompson, 8 Ala. 650, and asserted by several subsequent decisions.

The bill of exceptions does not distinctly state it, but there was some evidence afforded by the proximity of the possession of the defendant to that of Jethro Mobley, that the defendant derived his title, if any he had, from Mobley, or held in subordination to him. At all events, Mobley is proved to have been in possession of the slave for several years, and she goes from him to the defendant, who fails to give any account as to the manner in which he acquired the possession. Such being the case, the presumption, in the absence of all rebutting proof, is, that he acquired the possession from Mob-ley, the person proved to have had the possession next before the defendant acquired it. Holding, then, either as a purchaser from, or in subordination to the claim of Mobley, it is obvious that the declarations of the latter in disparagement of his own title, or repudiating title in himself, were competent evidence. 1 Greenl. Ev. § 190. They would have been good as against Jethro Mobley, and are equally good as against any one subsequently deriving title, or claiming to hold under him. Nelson v. Iverson, 17 Ala. pp. 221-2.

But we think the whole proof offered by Eorbes admissible upon another ground. It must be borne in mind, that this is not the case of a party offering the declarations of himself or those under whom he claims, to sustain his title; but the declarations of a third person, found in the possession of the slave, and made while hiring her to the witness, the same being explanatory of, and probably forming an element in the contract of hiring, and tending to establish the part execution of a trust which had been conferred upon Jethro Mobley by the plaintiffs’ father; namely, that he would take care of the slave for the plaintiffs, &c. The declaration of Mobley, at the time of hiring, “ that the slave belonged to the plaintiffs, who were minors and orphans,” showed that he was but the plaintiffs’ bailee, and hired her in that capacity, and did not hold adversely, but in subordination to their title.

We repeat, that such declaration was unquestionably competent to show, that Mobley had no title, and to rebut any presumption or inference that the defendant derived any through him, if he held under him. See Oden v. Stubblefield, 4 Ala. 40; and cases in this court cited in 17 Ala. 222; 18 ib. 201, 348, 822.

We regret that the statute of frauds of the State of Georgia is not before us, so that we might settle the law upon the merits of this case, and thus save further litigation; but, as it is not, we forbear to express any opinion upon the law arising upon the partial statement of facts contained in the bill of exceptions.

As to the right of plaintiffs to sue by reason of the conversion, notwithstanding they may not have been entitled to the possession of the slave at the time, see Tucker v. Magee, 18 Ala. 101.

For the error above noticed, the judgment must be reversed, and the cause remanded.