12 Ala. 604 | Ala. | 1847
In McBride and wife, et al. v. Thompson, 8 Ala. R. 650, we said, “ the affirmation of the party in possession, that he held in his own right, or under another, is proper evidence as part of the res gestae,” where the res gestae was “ his continuous possession; but his declarations beyond this, are no part of the subject matter, or thing done, and cannot be received as such. While it is allowable to prove the statements of one in possession and explanatory thereof, it is not permissible to show every thing that may have been said by him in respect to the title ; as that it was acquired bona fide, and for a valuable consideration; was paid for by the money of a third person, or his own, &c. This we have seen, instead of being part of the res gestae,
It was conceded in the case last cited, that such evidence was not entitled to any influence^as proof of consideration, if the debt to the attaching creditor existed when the sale took place. Yet the declaration of the vendee would be most potent to show that the purchase was made for the benefit of the trustees, upon proof being made that the means of payment were furnished by them, or taken from their estate. In this view then, the claimant might have been prejudiced by their exclusion, and it therefore follows that they were rightly admitted.
The charge of the court is not as well expressed as it might have been, >yet it must be understood in reference to the evidence in the cause. The liability of the property to the attachment was resisted by the claimant, by the introduction of the deed to him in trust for others, and extrinsic evidence in support of it. In instructing the jury, that if the slaves in controversy belonged either to the claimant or his cestui que trust mentioned in the deed, then they were