Larkin v. Baty , 111 Ala. 303 ( 1895 )

HEAD, J.

This was a statutory trial of the right of property, on a claim interposed by the appellee to the property levied on under an execution on a judgment rendered against the husband of the claimant. Of the two cows levied on as the property of the defendant in execution, one of them was acquired by purchase, by him, of the plaintiff, in 1889 ; and the other was the offspring of this one, calved after January 20th, 1890, — the date of the inception of claimant’s alleged title. The question at issue and to which all the evidence seems to relate, ivas whether or not this mother coiv had been sold by the husband, W. E. Baty, to his wife, the appellee, on or about January 20th, 1890, so as to effect a change of ownership from him to her. Upon this question, the evidence was conflicting. The jury decided the issue in favor of the claimant, and the coui't below declined, on motion of the plaintiff, to set the verdict aside.

The evidence for the claimant' tended to show that about January 20bh, 1890, it was agreed between the claimant and her husband, that in consideration of the sale of the coiv to her, she would assume the payment of his indebtedness to the family physician, amounting to more than the value of the coiv ; that this creditor agreed to look to her for payment of his demand and to let her pay it in work for his wife and family ; and that from that time she had continually claimed the cow as hers, and the husband had not claimed to own it. She after-wards paid the bill in full. The coiv and its offspring were kept and used at the fami'y residence in Larkinsvide.

The plaintiff’s evidence tended to show that the defendant in execution still claimed to own the oiv after the date of the alleged sale to the wife. The plaintiff obtained judgment against the defendant in February, 1893, on a dema..d which is described in the complaint as a bond executed by the defendant January 2d, 1891, and the levy was made in March, 1893.

The assignments of error relate to the several rulings of the court in admitting certain evidence against the objection of the plaintiff, and to the ruling of the court in refusing to set aside the verdict and grant a new trial, fro which exceptions were reserved.

1. - One of the witnesses for the claimant testified that she “had a conversation with'Mrs. Baty about .them (the cows) in 1891 in which she said the cows belonged to her. This declaration was made to me at her house, and one time in the cotton field before this suit was commenced.” The plaintiff objected to the evidence of the conversation in the cotton field and moved to exclude it, without specifying any grounds of objection or grounds for the motion to exclude. Hence, unless the evidence is patently illegal or irrelevant, the exception should not be considered. Rule of Practice, 90 Ala. p. IX; Bates v. Morris, 101 Ala. 282. Manifestly, this evidence was offered as explanatory of claimant’s possession of the property in controversy, and that it was competent for such purpose is well established. — McBride v. Thompson, 8 Ala. 650-653; 1 Brick. Dig. 558; 3 Brick. Dig. 419, § 189. “The husband and wife lived together, and, of necessity, had a community of possession. * * * Under such circumstances the law refers the possession to the title, because the possession is where it ought to be, if it be under the title.” Cole v. Varner, 31 Ala. 244, 251; Hawkins v. Rose, 100 Ala. 459; Scruggs v. Decatur M. & L. Co., 86 Ala. 173, 178.

Counsel did not object to the evidence of claimant’s declaration made at her home, but only to that made in the cotton field. The place where the declaration was made would make no difference, under the circumstances of this case. The evidence was admissible as part of the res gestie, which res gestiv, was the continuous possession of the person making the declaration.— McBride v. Thompson, supra.

2. The evidence offered by the plaintiff to show that the defendant in execution listed the property for taxation as his own in-the year 1892, was not objected to by the claimant. As to its admissibility against-her, see Dafron v. Crump, 69 Ala. 79; Wright v. Merriwether, 51 Ala. 183-185. Having been admitted, however, it was proper to admit the rebutting evidence, offered by the claimant, of declarations made by the defendant to the tax assessor at the time he listed the property, to the effect that he at first refused to give this property in to the assessor on the ground that it was not his, but his wife’s, and only consented to do so, on the representation of the assessor'that it would be all right any way, as the property ivas exempt from taxation. The objections to this evidence were also general and governed by the Rule of Practice already cited.

3. The assignment of error based on the refusal to set aside the verdict and to grant a new trial, can not be sustained. The claimant ivas authorized by law to purchase and pay for the cow. Indeed, there seems to be no contention that the sale, if made according to the evidence for the claimant, would have been invalid by reason of the ineompetency of the husband' and wife to enter into such a contract.

Assuming the truth of the evidence for the claimant, the consideration for the sale ivas a valuable one, and the debt which she was to pay, and did pay, amounted to at least the value of the coiv. The evidence to prove the fact of sale and good faith of the transaction, if believed by the jury, was competent to support the verdict.

One of the grounds of the motion for a new trial was that the verdict was contrary to the charge of the court to the jury, but the charge is not set out in the record .

One of the jurors was a brother to a surety on the claim bond. The surety was not a party of record, and hence the relationship did not disqualify him as matter of law from serving on the jury, but might have afforded ground for a challenge for favor. — Acts 1888-89, p. 77, § 2; 1 Thompson on Trials, §§ 52 to 68, inclusive; Calhoun v. Hannan et al., 87 Ala. 277. The interest of the surety in the suit ivas conditional and contingent.— Code, §§ 3008-9. The fact of the relationship, if known to the plaintiff, or his counsel, when the jury was selected, might have afforded ground for excusing him ; but the record is silent as to whether or not they had such knowledge, when they accepted him as a juror. He is not shown to have had any actual bias in favor of claimant. Indeed, on examination by the plaintiff as a witness on the motion for new trial, he testified, in effect, that he did not know, prior to the verdict, that his brother was a surety on the claim bond, or that if he had known it, he had forgotten it, and that the fact of his suretyship did not influence his finding.

The judgment of the circuit court is affirmed.