Elmore v. Fitzpatrick ( 1876 )

MANNING, J.

According to the evidence for plaintiff below, appellee in this court, defendant below, Betsy Elmore, had no other right to the horse in controversy, than that the animal was in the possession of her husband, Dennis Elmore, at the time of his death, and remained in hers; and she liad no title to the horse higher than she could have derived from Dennis. Upon this state of the evidence, it was not error in the court to permit the declarations of Dennis, while he was in possession, of the terms on which he received the mare, the dam of the horse sued for, from the late Governor Fitzpatrick, to go as evidence to the jury. The acknowledgments of Dennis, that the mare Was to remain the property of Governor Fitzpatrick, till she was paid for, and he was to hold her as such, were, in that aspect of the case, admissible. When, afterwards, defendant introduced evidence tending to show title in herself, independent of, and paramount to that of her husband, proper instructions should have been given to the jury, if requested by defendant,- in respect to the weight due to the declarations of Dennis, if they believed defendant’s title to be paramount to, and independent of his. There was, consequently, no error in admitting the evidence objected to.

2. The evidence adduced by plaintiff conduced strongly to show that the title to the mare was in Governor Fitzpatrick, and was to remain in him as security for the payment of Dennis’ note for $100; and as the title to the offspring of the mare follows that of the to the sequitur ventrem, the title to her colt, the horse in controversy, was in the same person who had title to the mare; and that title, after the death of Governor Fitzpatrick, was transferred to his son, the plaintiff in the present cause, and the owner and holder of the note' of Dennis. It follows, that there was no error in the refusal to give the charges requested by defendant.

Let the judgment be affirmed.

Brickell, C. J., not sitting.