Cotten v. Thompson , 25 Ala. 671 ( 1854 )

LIGON, J.

The questions to be settled here arise out of the two affirmative charges of the court, as no objection, in the court below, to the admission of evidence, was raised by either party.

1. The first charge given by the court is clearly erroneous. If the fullest effect is given to the proof relating to the possession of Savery, it is not adverse to Spence, except as to an interest of one half in the slave in controversy. If all that Savery claims is allowed him, he held the slaves both for himself and Spence, at no time questioning the title of the latter to an undivided one half interest in them. We know of no case which rules such a possession to be adverse : the holding is similar to the possession of tenants in common in real estate, and must be considered in reference to the rules which govern such ténancies. Under these rules, the case presented is that of one tenant in common in the actual possession and enjoyment of the entire premises, fully recognizing all the title of his co-tenant. In such case, the possession is not adverse, and never becomes so, unless, on demand of the tenant not having the actual possession, he who is in refuses to account with him for the rents and profits, and denies the title of his co-tenant.—2 Black. Com., top page 156, (note 28). Nothing of this kind is shown here; and we have no doubt that the deed to Cotten became operative, as a conveyance of Spence’s interest in the slave, from the time of its delivery.

It is true, that, at the time of its execution, the appellee was a judgment creditor of Spence, with a fi. fa. on her judgment in the hands of the sheriff; but it is also shown that this fi. fa. had been levied on this slave, which was released by the sheriff, because he had doubts as to its being the property of Spence, and had demanded a bond of indemnity of the plaintiff, who failed to give it in the time prescribed by law. This had the effect of destroying the lien of the execution as to this property, up to the time of the levy, and thus gave effect to the deed of Cotten which was made before that period. Otey v. Moore, 17 Ala. 280.

This view is wholly inconsistent with both the charges given in the court below, and we therefore pronounce them erroneous.

It is insisted, however, that although this is conclusive of error in the charges, still, as the record does not show that the claimant proved any consideration for the making of the deed, it is evident the verdict is right, and that the charges amount to error without injury. It is a sufficient answer to this, to say that the record does not show that this point was ever made in the court below; and it is certain that it exerted no influence over the court in producing the erroneous charges given. Under these circumstances, we cannot consider it here, especially as no objection to the reading of the deed was made in the court below, and no charge was asked in reference to the effect of this deficiency of the proof upon the rights of the parties.—Castillo & Keho v. Thompson, 9 Ala. 937; 5 ib. 136; 14 ib. 182 ; 16 ib. 398; 21 ib. 417.

Let the judgment be reversed, and the cause remanded.

OhiltON, C. J., not sitting.