Mayer v. Clark , 40 Ala. 259 ( 1866 )

BYBD, J.

1. The court did not err in permitting the plaintiff to introduce the claim bond of the claimant, “ as evidence to prove the levy of the attachment.” — Henderson v. Bank of Montgomery, 11 Ala 858. Nor in the admission of the attachment and levy thereon, as evidence to the jury. Lanier v. Br. Bank at Montgomery, 18 Ala. 627.

2. Nor was there any error in permitting the plaintiff to identify the articles levied on by the attachment, as the same enumerated in the levy; though such identification may have been unnecessary. We cannot see how such proof could have prejudiced the claimant. — Borland v. Mayo, 8 Ala. 111; Upon the same authority, there was no error in the introduction of the notes due the plaintiff from the defendant in the attachment suit, nor in the proof of the consideration of the notes. It would have been clearly admissible in rebuttal.

3. Upon the same principle, there was no error in permitting the plaintiff to prove and read to the jury the interlineation made after the execution of the notes, but made immediately thereafter, by the consent of the makers. See, also, Yarborough v. Moss, 9 Ala. 389; Parsons v. Boyd, 20 Ala. 121; Frierson v. Frierson, 21 Ala. 555; Seabury v. Stewart & Easton, 22 Ala. 220; Kyle v. Mayes, 22 Ala. 694; Bishop v. Blair, 36 Ala. 85; Jemison v. Smith, 37 Ala. 185.

It may appear difficult to reconcile these cases with the doctrine laid down in 1 Green. Ev. § 52, and the following cases: Perry v. Graham, 18 Ala. 824; Lane v. Taliaferro, 23 Ala. 376; Mobile Man. Co. v. McMillan & Son, 31 Ala. 722; City Council of Montgomery v. Gilmer, 33 Ala. 132; and especially the cases of Borland v. Mayo, and Taliaferro v. Lane, supra. Whether they are reconcilable, we will not decide; but hold that the cases first cited announce principles which are applicable to this case. The latter cases seem to hold, that the introduction of irrelevant testimony is a reversible error.' The former hold, that it is a reversible error, unless it clearly appears from the record that the jury was not misled, or some injury did not result to the party objecting. The court should always exclude irrelevant testimony, and keep the parties to the issue.

4. The court very properly permitted the plaintiff to prove, by way of rebuttal, and as explanatory of the possession of John Q. A. Lynch, that after the making of the supposed mortgage, and before the levy, he sold á portion of the property in the mortgage, in the absence of the claimant. — Nelson v. Iverson, 24 Ala. 16; Price v. Br. Bank at Decatur, 17 Ala. 376; Upson v. Raiford, 29 Ala. 188. We do not decide that the instrument was a mortgage, and only call it so for convenience.

But, although the plaintiff offered said act for the purpose indicated, yet the court gave it a different direction and influence, “as a circumstance to show the bad faith of the mortgage transaction between claimant and said John Q. A. Lynch ”; and in doing this, the court below departed from the authority of decisions made by this court, in the cases of Price v. Br. Bank at Decatur, supra; Thompson v. Mawhinner, 17 Ala. 366; Newcombe v. Leavitt, 22 Ala. 641; Foote and Wife v. Cobb, 18 Ala. 588; Perry v. Graham, 18 Ala. 824. The rule seems to be well established, that such acts of a donor or grantor in possession are admissible to show the character of his possession, but not to attack the bona ftdes of a conveyance made by him of property in his possession.

The court refused to allow the claimant to ask witness if he did not advise said John Q. A. Lynch to sell said lot of shoes to the plaintiff, at or immediately before the sale. Suppose that the witness had answered affirmatively; how could that have affected the rights of the parties, or rebutted the effect of the evidence as to the character of the possession of Lynch? We can not see in what way it could have tended to explain the possession; and though it might have tended to explain the sale, as an act impeaching the bona fides of the conveyance from Lynch to claimant, yet, as the proof of the sale has been held to have been improperly admitted for that purpose, it is unnecessary to say more on this question.

This disposes of all questions arising during the trial on the admission and exclusion of testimony.

5. Where the possession of a chattel remains with the vendor, it is, as to creditors, a badge of fraud simply, and not fraud per se. — Hobbs v. Bibb, 2 Stew. 54-336; 5 Ala. 531, 780; 14 Ala. 814; 24 Ala. 219. Possession remaining with the vendor, unexplained, is, prima fade, evidence of fraud; and if consistent with good faith and the absolute disposition of property, and the transaction is bona fide throughout, then the title passes by the contract of sale, notwithstanding the possession remains with the vendor. Millard's Adm’rs v. Hall, supra, and the cases therein cited.

The first charge 'of the court, and the second, too broadly lay down the law, when applied to the evidence, and when tested by the principles laid down in the cases of Hobbs v. Bibb, supra, (which is very much in point,) and the case of P. & M. Bank of Mobile v. Borland, 5 Ala. 539. The latter case is explanatory of the rule laid down in the former; and we recognize it as laying down the true rule. But the error in the first and second charges was cured by the instruction given to the jury in connection with them. The true rule would seem to be, that possession of personal property after a sale, remaining with the vendor, is a badge of fraud, which, if unexplained, would be sufficient to authorize a verdict against the vendee. But, if explained, as required in the case of the Bank v. Borland, then the title of the vendee will not be affected by the possession of the vendor. Testing the second charge with the qualification by these rules, we cannot say that the court erred. It in effect conforms with the principles established by these cases; though, in saying upon the facts hypothetically stated, that “the mortgage was, in legal presumption, fraudulent and void as to the creditors of Lynch ”, it is too strong; but it was neutralized by instructing the jury, in connection therewith, “that the presumption of fraud would be rebutted by Mayer showing by the evidence that the transaction was bona fide, and upon a full and fair consideration.” This qualification was more favorable to the vendee than the rule laid down in Borland's case, and Upson v. Raiford, 29 Ala. 194.

6. Instead of passing severally on each of. the other charges given, and those refused, we will proceed to state principles which will serve to aid the parties and the court in arriving at a just decision of the matter in controversy.

Upon the dissolution of a partnership, it is lawful for the partners, in cases of a dissolution by consent, to agree that the partnership property shall belong to one of - them; and if the same is bona fide, and the agreement is for a valuable consideration, it will transfer the entire property to such partner, wholly free from the claims of the joint creditors. Gow on Partnership, ch. 5, § 2, pp. 237-40, 3 ed.; Collyer on Partnership, b. 2, ch. 1. § 2, pp. 113-4, 2 ed.; 1 Mad. 346; 10 Vesey, 347; 2 Swans. 575.

7. A partnership creditor has no lien on partnership property, which he can enforce at law, except by obtaining judgment and execution thereon; and it seems that he has no hen in equity. — Story on Partnership, § 97; Ex parte Bufford, 6 Vesey, 119-26, where the subject is fully discussed by Lord Eldon; and also in Story on Partnership, ch. 15. The cases of Burwell et al. v. Springfield, (15 Ala. 273,) and Nall et al. v. McIntyre, (31 Ala. 533,) are not in conflict with the above. Nor is it inconsistent with the rule of the administration of partnership effects, which gives a priority to partnership, over individual creditors.— Emanuel v. Bird's Adm’r, 19 Ala. 603.

Eor the error pointed out in the opinion, let the judgment be reversed, and the cause remanded. -

Judge, J., did not sit in this case, having been of counsel in the court below.