Stallings v. Finch , 25 Ala. 518 ( 1854 )

GOLDTHWAITE, J. —

The evidence shows, that William Finch, the owner of the slave in controversy, left her in the possession of the plaintiff and his wife, informing them at the time that, if he never called for said slave, the plaintiff’s wife was to have her, — that he subsequently died without having called for her, and made no disposition of her by Ms will; and the charge refused raises the question as to the right of the plaintiff below to recover upon these facts.

It is indispensable to the validity of a parol gift of a chattel, that the owner should part with his dominion over it.— Phillips v. McGrew, 13 Ala. 255. In Bryant v. Ingraham, 16 Ala. 114, it is said by Dargan, J.: “ The mere declaration by one that he would give, or had given a chattel to another, when it is shown that the donor never parted with the possession or control of it, would not be sufficient to establish a title by gift.” So, in Jones v. Dryer, 16 Ala. 221, Collier, C. J., says: “To constitute an effectual delivery, the donor must part with the dominion of the thing in favor of the do-nee.” See, also, the cases cited in the last opinion. Here the owner never parted with the right of control or dominion, and the authorities we have cited are conclusive to show that the facts in evidence did not amount to a gift. *

If the declarations of William Finch, given in evidence by the plaintiff, had established a gift of the slave from him to the wife of Stallings, then the letter which he wrote in 1847, introduced against the objection of the plaintiff, would not have been competent evidence, for the reason, that the subsequent declarations of the donor could not affect the title which the donee had acquired. But here, one of the questions involved was, whether Yvilliam Finch had parted with his dominion of the slave in favor of the donee; and as the evidence tended to show that the donee was holding as his bailee, the letter was admissible, for the purpose of showing that his control over her continued up to its date.

The evidence offered by the plaintiff, as to the connection which existed between the slave and William Finch, was also properly rejected, as that fact would not, by itself, have tended to establish a gift, and when aided by the other testimony which the record discloses, would not have been sufficient to entitle the plaintiff to a recovery, upon the legal principles we have laid down in this opinion, had the evidence been demurred to. It might, perhaps, under some circumstances, have tended to show a motive for making such a disposition of the slave, but no such circumstances are disclosed by the record, and the evidence was wholly irrelevant.

Judgment affirmed.