Mobley v. Barnes , 26 Ala. 718 ( 1855 )

GOLDTHWAITE, J.

—The declarations of persons not parties to the suit are, in general, mere'hoarsay, and for that reason are inadmissible, unless made under circumstances, or offered in connection with testimony, which would render them competent. In the present case, the bill of exceptions shows, that the person by whom the-’declaration was made was in possession of the slave to which it related, at two different periods, but it does not show, either directly or inferentially, that the declaration was made at either of those periods, and it could not for that reason be regarded as part of the res gestee. But, if he had been in possession, it would have made no difference, as the declaration was not explanatory of the act of possession, but narrative of a past occurrence.—1 Greenl. Ev. § 110.

But it is said, that the declaration was made by the party under whom the appellant claimed, — was in disparagement of his own title, and therefore binding on his vendee. An admission by one, that he had promised to give certain property to another, cannot, in any aspect in which it can be considered, be deemed a repudiation of his own title by the party making the admission. On the contrary, it rather implies that he regarded the ownership as in himself when he made the promise, and is very different from the declarations which were held to be competent evidence on that ground when the case was last here.—Barnes v. Mobley, 21 Ala. 232, 239. There they were made by the vendor in possession, before the sale, and wore admissions directly recognizing the title of the appellants, and for that reason were good against the vendee.

Our conclusion is, that upon the facts as stated in the record, the court erred in receiving the evidence objected to. Its judgment is, therefore, reversed, and the cause remanded.

Bice, J., having been of counsel, did not sit in this case.