22 Ala. 416 | Ala. | 1853
The issue to be tried was, to whom did the slaves, Adam and Jane, belong at the date of the levy? Were they the property of the claimant, George E. Allen, or were they subject to plaintiff’s execution, as the property of Wm. M. Allen?
The witness, Looney, testified, that Wm. M. Allen came to him with the note for $1200, or thereabouts, which is proven to have been the note given to Wilson, the administrator of Waters, for the property bid off at the sale by both Wm. M. and George B. Allen, and requested him, the witness, to sign it, as his (Wm. M. Allen’s,) security, and that he did so. The claimant objected to proof of what transpired, between Wm. M. Allen and witness on this occasion, because
Tbe proof of tbe request made by tbe claimant of tbe same witness, to have him included in a deed in trust, which witness was about to obtain from William M. Allen, to protect him against bis sueretyship on tbe $1200 note, so that be, tbe claimant, might be protected against bis suretyship likewise, was also clearly relevant to tbe issue.
• After tbe plaintiff bad gone on, without objection, to give parol evidence of tbe contents of tbe deed in trust from Wm. M. Allen to Cooper, trustee; to secure tbe note made by tbe two Allens and Looney, in favor of Wilson, administrator, and after tbe claimant bad cross-examined touching tbe same matter, it was discretionary with tbe court to sustain tbe motion of claimant to exclude the parol evidence or not, and the exercise of this discretion will not be reviewed. Allowing the secondary evidence to be received without objection in tbe first instance, and then .cross-examining, was a waiver of bis right to object, which tbe claimant could not recall at pleasure. 4 How. (Miss.) 396; 13 Conn. 156.
But tbe admission of parol proof by tbe witnesss, Wilson, of tbe contents of tbe second deed in trust made by claimant to secure tbe new note that was given, against tbe objection of tbe claimant, was an error. Smith v. Armistead, 7 Ala. 698; Greenl. Ev. § 82, el seq.
Claimant, at tbe time be delivered tbe note for tbe purchase money of tbe property bid off by himself and also by Wm. M. .Allen, which, as has been shown, was signed by tbe two Allens and Looney, said to Wilson, tbe administrator and payee of tbe note, in tbe presence of Wm. M. Allen, “that Wm. Allen could not give security for tbe slaves be
In this there was error. It was competent for the claimant in this issue to show, that he had purchased of William the slaves he bid off, or obtained a pledge of them, or a mortgage upon them Iona fide, at any time before the lien of the plaintiff attached, and give in evidence any fact proving or tending to prove such a sale, pledge, or mortgage. It cannot be questioned, that if a controversy had arisen, subsequent to that declaration of Greorge R. Allen to Wilson, in the presence of Wm. M. Allen, between Greorge R. and Wm. M. Allen, about the right to the possession of these slaves, this declaration would have been competent evidence on the part of Greorge R. to sustain his right to the possession as bailee, or even as a purchaser from Wm. M. Allen. William stands by, and hears Greorge R., who is at the time delivering a note to the administrator, which includes the purchase money for these slaves, tell the payee in the note, “ that he had agreed with William to make the note for the whole amount, and that the property was to be his until he (William) paid for it,” and says nothing against it. This was a few days after the sale, and while the slaves were at the house of George R. Allen. When he took the advantage of the act of George R. Allen in making and delivering this note, and heard him in that act declare that such an agreement existed, he thereby estopped himself from denying such an agreement, and the act and declaration accompanying it became competent evidence of such an agreement, against him and all claiming under him. It is not necessary to argue to prove that a plaintiff in execution, as to the property levied on in this case, succeeds only to the rights of his judgment debtor, the defendant in execution; that is, that Smith, as to the right to these slaves, stands in the shoes of Wm. M. Allen. This being so, the right to make this proof against Smith is clear. How far this testimony was affected by the other proof, going to show that subsequently George R. had
The other assignments of error are not noticed in the argument of the counsel, and it is not deemed necessary to consider them.
For the errors set forth, the judgment below is reversed, and the cause remanded.
