Collins v. Sherbet , 114 Ala. 480 ( 1896 )

COLEMAN, J. —

The appellee, Mary J. Sherbet, a married woman, sued the appellant in trover to recover for all alleged conversion of one mule named Belle, one mule named Gip, one cow, two yearlings, one two horse wagon, two sets plow gear, two blind bridles and one pair wagon lines. This property was first mortgaged by the husband in payment of the debt. This transaction between the husband and defendant is not questioned.

After the close of the evidence, the defendant requested the court to instruct the jury to find for the defendant as to the mule Belle, which instruction the court refused. We will first consider the evidence as to the mule Belle. The plaintiff and her husband removed from Etowah county to Marshall county in the year 1892, upon the lands of the defendant, the husband becoming his tenant. At that time the plaintiff owned the mule Gip, a yoke of cattle and cow and calf. It was controverted as to whether the defendant was informed that the above mentioned property belonged to the wife, but for the purpose of testing the correctness of the action of the court in refusing the affirmative charge, it must be conceded that he was notified. Soon after the husband became the tenant of the defendant, he exchanged the yoke of oxen belonging to plaintiff with defendant for a mule, and agreed to pay $75 boot. This debt constituted a part of the consideration for which the property was sold to defendant. The husband then exchanged this mule for a horse, and paid of his own money $15 addition on the trade. The husband then procurred a Mr. Owen to exchange the horse for another mule. The defendant then at the request of the husband, exchanged this mule for the mule Belle, sued for, and gave $7.50 on the trade. ‘ ‘There was no evidence that at the time of any of these swaps, anything was said about the property being plaintiff’s.” There was some evidence tending to show that the wife verbally authorized the first exchange with defendant — that of the oxen for a mule, for which the husband agreed to pay as boot seventy-five dollars — but there is no evidence tending to show that there was any notice of this authority given to the defendant; nor does the evidence tend to show any authority from the wife as to the other exchanges, nor any ratification whatever by her as to the subsequent exchanges by which the mule Belle was obtained, except that to be implied from the bringing .of this suit. Section 2348 of the Code of 1886, contains the following provisions : “But the personal property of the wife, or any part thereof may be sold, exchanged, or otherwise conveyed or disposed of by the husband and wife by parol, or otherwise.” If it be conceded that the exchange of the oxen with defendant for the mule, in which transaction the husband became bound for seventy-five dollars, created the husband and wife tenants in common as to the mule received in exchange, there is no evidence whatever, to show that she authorized or ratified the sale or disposition of her interest as such cotenant, in the exchange of this mule for the horse, or the subsequent exchanges. As to all these latter transactions, there has been no compliance with the statute. The affirmative charge requested by the defendant, as to the mule Belle should have been given. Were we to go further and concede, that these exchanges were authorized or ratified by the wife, there was no data before the jury which would enable them to determine the interest of the wife in the mule Belle. First, there was the obligation of the husband to pay seventy-five dollars, there was a payment by the husband in the next transaction of fifteen dollars, and in another,- seven and a half dollars. A jury could not determine from the data funiished, the proportionate interest of the wife in the mule Belle. Under these conditions she would, not be entitled to recover more than nominal damages. Cox v. Boyett, infra; 17 So. Rep. 26 ; Stout v. Kinsey, 90 Ala. 546 ; Pollak v. Graves, 72 Ala. 347.

The rule of law applied as to the mule Belle and the principles declared in the foregoing' authoiities are believed to be sufficient in each instance where there was an exchange of property, and we deem it unnecessary to further discuss them.

The court erred in admitting the bill of sale of the wagon to the wife. There are cases, where the evidence furnished by a written instrument arises merely incidentally or collaterally, it may not be necessary to prove its execution by an attesting witness ; but here, the plaintiff’s title was derived from and depended on the bill of sale. In all such cases the general rule applies that the attesting witness must be produced or his absence accounted for. The reason of the rule and the principle is fully stated in the cases of Ellerson v. The State, 69 Ala. 1; Russell v. Walker, 73 Ala. 315 ; Martin v. Mayer, 112 Ala. 620. The evidence shows that in fact the wagon was purchased by the husband and paid for by sales of timber from his land. This was a mere gift to the wife. There is no evidence of the date of this transaction. It was constructively fraudulent as to existing creditors. Whether so as to future creditors would depend upon the intent of the parties. The abstract fails to set out enough of the testimony of the witness May to enable the court to determine whether any of it was relevant or material. The general rule is, that when one party calls for a part of a conversation, the other party is entitled to all that was said in the same conversation relative to that part elicited.

For the errors pointed out the judgment must be reversed.

Reversed and remanded.