Baker v. Drake , 148 Ala. 513 ( 1906 )

DOWDELL, J.

— This cause originated in the justice .court ,and was carried to the circuit court by writ of certiorari. There was no merit in the plaintiff’s motion to dismiss the certiorari. The fact that the claimant in his petition for the writ of certiorari styled himself “defendant” did not alter the fact that be was claimant in the trial, in which, the judgment appealed from was rendered. The claimant’s describing himself in the petition as defendant was at most a mere irregularity, and furnished no reason for dismissing the certiorari.—Code 1896, § 488.

Declarations made by a party while in the actual possession of property, asserting title in himself, are admissible in evidence as a part of the res gestea, explanatory of the possession; but this doctrine cannot be extended to include declarations as to the history and source of such title.—Ray v. Jackson, 90 Ala. 513, 7 South. 747; Vincent v. State, 74 Ala. 275.

The general rule is that declarations or statements made by a third party in the'absence of a party against whom they are offered in evidence are inadmissible. There is nothing to take the statements of Yarbrough, which were sought to be shown by the witness Ham, without this rule, and the trial court committed' no error in sustaining the objections to this evidence.

The plaintiff’s right of recovery in this case was dependent upon the title to the property levied on being in Bishop, the defendant in execution, at the time of the levy. • This was the material issue on the trial, and evidence tending to show that plaintiff did not know, when he was furnishing goods to the defendant Bishop for which the judgment on which the execution issued was rendered, that the claimant was asserting any claim or title to the property in question, was wholly immaterial. There was, therefore, no error in refusing to permit the plaintiff, as a witness, over the objection of the claimant, to testify to these facts.

The claimant under the evidence could be guilty of no fraud against the plaintiff in rescinding the contract for the sale of the horse to Bishop, and in taking back the horse in settlement of the note given for the purchase price. He had as much right to collect his debt as did the plaintiff. The evidence fails to show any fraud upon .the rights of the plaintiff.

The evidence was without dispute that the horse in question originally belonged to the claimant, and that the contract of sale by claimant to Bishop, the defendant in the execution, was by the parties rescinded prior to the time of the levy of the execution by the constable. On this undisputed evidence the general affirmative charge might well have been given for the claimant. The rescission of the contract of sale reinvested the title to the horse in the claimant. This being true, there was no reversible error committed in the refusal of charges requested by the plaintiff.

No reversible error appearing in the record, the judgment will be affirmed.

Affirmed.

Haralson, Anderson, and Denson, JJ., concur.