Gardner v. Boothe , 31 Ala. 186 ( 1857 )

WALKER, J.

— It is contended for tbe appellant, who was the defendant below, that under the law of Mississippi, as set forth in the decisions which were read in evidence on the trial, that a complete title to the female slave who is the mother of all the others in controversy, vested in Mrs. Bettner; and that, consequently, Mrs. Bettner’s husband had no title which he could convey by the deed of trust under which the plaintiff claims. The defendant thus, in effect, asserts the proposition, that there is outstanding in Mrs. Bettner, who is, as to this controversy, a third person, a title paramount to that transferred to the plaintiff by the husband of Mrs. Bettner. The defendant, however, claims title by a conveyance, in the form of a bill of sale, from the husband of Mrs. Bettner, — the same person from whom the plaintiff deduces iris title. Thus claiming title from the same person with the plaintiff, and setting up no other title, the defendant is estopped from asserting a paramount outstanding title in a third person, with which he is not in any way connected. The plaintiff is not required to trace his title farther than to the source of title common to him and the defendant. — Gantt v. Cowan, 27 Ala. 582; Garrett v. Lyle, ib. 587; Seabury v. Stewart & Easton, 22 Ala. 207; Pollard v. Cocke, 19 Ala. 188; McCravey v. Remson, 19 Ala. 430 ; Miller v. Jones, 29 Ala. 174; S. C., 26 Ala. 247. It is, therefore, unnecessary for us to consider the effect of the Mississippi law; because, conceding to it the effect claimed by the appellant, it cannot avail her.

2. Although the deed of trust to the plaintiff was voluntary, it would not therefore be void as to the defendant, notwithstanding she may be a subsequent purchaser for valuable consideration without notice. To invalidate it as to a subsequent purchaser, it is necessary that there should have been a fraudulent intent. — Stiles & Co. v. Lightfoot, 26 Ala. 443.

3. A fraudulent intent being necessary to the avoidance of the plaintiff’s deed, the court had no right to assume that such intent was proved, even though there had been a strong tendency of the evidence in that direction; consequently, the refusal of any charge which required such assumption, was not erroneous. If the defendant is a subsequent purchaser for valuable consideration, she undoubtedly has the right to assail the conveyance to the plaintiff for fraud; and while the fact of its being voluntary would not, of itself, establish the fraud as against her, it would nevertheless be evidence to be regarded by the jury in determining the question of fraudulent intent. Read v. Livingston, 2 Johns. Ch.

4. If the plaintiff' in this case had a right to recover at all, the defendant’s possession was unlawful; and under the decision of Lawson v. Lay, 24 Ala. 184, a demand was not necessary to authorize the recovery of damages for the unlawful detention of the property. The charge of the court upon that subject would be perfectly consistent with the principle correctly established in the case cited, and would involve no error, if it had directed the jury to compute damages from the commencement of the defendant’s possession. But the court fixed the time for the commencement of damages at the date of the defendant’s purchase. The evidence conduces to show that the defendant’s possession commenced at the time of her purchase, but does not establish that fact with such certainty as would justify the court in withdrawing the question from the jury. The court could not assume, in the state of the proof, that the slave passed under the defendant’s control, and into her possession, at the time of her purchase. This charge of the court contains the only error found in the record; but, for the error on this point, the cause must be reversed, because, while it is possible, it is not dear that the defendant was not injured by the error.

The judgment is reversed, and the cause remanded.