Johnson v. Boyles , 26 Ala. 576 ( 1855 )

OOLDTHWAITE, J.

—The deed, under which the plaintiff below assented his right to recover, purported to be made, pot only on the consideration of natural love and affection, but “ for divers other good considerations”; and although it may be questionable, in a contest in which the rights of creditors and purchasers were involved, whether a valuable consideration could be shown, to sustain a deed which upon its face is based upon a voluntary consideration only, yet where (as in, the present case) it appears that the conveyance was mac7e upon other considerations which are not specified, as w'ell as natural love and affection, the character of the deed hs not changed by admitting parol evidence to show such additional considerations. Such proof is not inconsistent with the deed.—Hayne v. Campbell, 6 Mon. 291; Maigley v. Hauer, 7 John. 342; Benedict v. Lynch, 1 John. Ch. 270; Jack v. Dougherty, 3 Watts, 155; Tull v. Partlett, 1 Mood. & Malk. 472; Miller v. Bagwell, 3 McCord 568; Jones v. Sasser, 1 Dev. & Bat. 466; Mead v. Steger, 5 Port. 506.

The deed, being shown by the evidence to have been made upon a valuable consideration, was not affected by the clause of the statute (Clay’s Dig. 255) which applies only to such conveyances as "are made upon a consideration “not deemed valuable in the law.”—Lazarus v. Lewis, 5 Ala. 459. It may not have operated as notice to the appellant; but, if it was made upon a valuable consideration, it was entirely immaterial, so far as the right of the appellee to recover was concerned, whether the defendant had any notice.

The letters of Abney, while in possession of the slaves, to the effect that he held for the grantee, were simply his written declarations, explanatory of his possession; and were properly admitted, as part of the res gestee.—Perry v. Graham, 18 Ala. 822.

Neither are we able to perceive any error of which the appellant can avail himself, in the court’s refusing to exclude the deed from the jury, or in the charges. There was no pretence for the exclusion of the deed, — the evidence showing it to be for a valuable consideration ; and if it was properly before the jury, the instruction given by the court — that it was before them as a deed of trust, and not as a deed of gift— could not have prejudiced the appellant. So, also, in relation to the charge “ that if the negro mentioned in the deed was received by Abney, (the grantor,) in exchange for other negroes owned by the husband of Mrs. Boyles, (the grantee,) upon an understanding with all the parties that she should be owned by Mrs. Boyles, the effect of the transaction would be, to make the latter the owner of the property”, — although it may not have been correct, yet, as the deed was valid and effectual, it was purely abstract, and could not in any respect have prejudiced the defendant; and when, that clearly appears, an abstract charge, if incorrect, would not be regarded as a reversible error.—Magee v. Billingsley. 3 Ala. 680.

In relation to the charges requested, it is only necessary to observe, that the first assumes that the deed is voluntary, when the evidence established a valuable consideration, and it was therefore properly refused. The second asserts, in effect, that a purchaser without notice, from a person in possession of property not belonging to him, necessarily obtains a good title; which, as a legal proposition, cannot be sustained. .And the-third rests upon the assumption that the slave was loaned to the person in possession, when the evidence proved that it was a bona fide hiring.

We see no error in the record of which the appellant can complain. Judgment affirmed.