Brown v. Brown

5 Ala. 508 | Ala. | 1843

CLAY, J.

The bill of exceptions, in this case, presents three points for the consideration of the court, under the plaintiff’s assignment of error’s.

1. The first is, whether the court below erred in excluding evidence of the conversation, which ensued the demand of the slave, to recover which the action is instituted, and the refusal of the defendant, below, to deliver him.. It appears the defendant’s counsel, on cross-examination, asked the witness to state the conversation which then took place between the parties, in relation to the negro, and the title to him.

While, on the one hand, a party of whom property is demand-' ed, may state any reasonable excuse, for refus'ng to deliver it— as, for example, that the prcpcily lias been found, and he must have evidence of the demandant’s ownership, before its delivery; or that he holds the property under a bailment from another, who claims title, and the Lke: cn the other hand, we must be careful not to infringe another salutary principle — which is, that no one shall be permitted to give or make evidence for himself. Here, the question went, not only to the conversation, in relation to the slave, but, also, the title to him: consequently, the defendant would have been availing himself of his own statements and declarations, in support of his title. In the case of Dent & Cade v. Chiles’ adm’r, [5 Stewart & Porter, 383] the plaintiffinan action of trover, had proved a demand of the property ; and the defendants offered to prove, by the same witness, the reply they made, at the time of the demand. The court below excluded this testimony, and was sustained in that opinion by this court. In the case of St. John, surv. v. O'Connel, surv. for the use, &c. [7 Porter, 474,] which was an action of trover, to recover for the conversion of two promissory notes ; the plaintiffs, on the trial, in the court below, proved a demand of the notes ; on cross-examination, the witness was asked what answer was made by the defendants ; the court excluded the evidence, and on exception to the opinion, the question was brought before this court. In the opinion delivered by the court, the case of Dent & Cade v. Chiles, adm’r, was cited, and the principle laid down in that case fully sustained. The result of all the authorities, we have examined is, that a party, of whom property is demanded, may prove a qualified refusal — whatever may amount to a reasonable excuse for the non-delivery of the property ; but he cannot be permitted to prove any of his own declarations of title, or property, in the thing demanded: that would be allowing him to make evidence for himself.

2. The next question is, did. the court err in the exclusion of the deposition of Thomas Rainy ?

The defendant in the court below, claimed under a bill of sale, with warranty of title, made by Rainy and another person: the objection was that he was interested, and'therefore incompetent. But the defendant proved, or offered to prove, that he had executed a release, in duplicate, one copy of which he had filed in the clerk’s office of Greene county, before the commission was taken 'out to take the deposition of the witness ; and that the other had been sent to the witness in South Carolina, with a request, that he would append to his deposition, either the original release, or á copy; the witness did append a copy, and testified, that he had received the original, before he gave' his testimony. The court below excluded the*evidence on the ground, that it was not shewn that the release had been delivered to Rainy ■'personally, or that ■he knew of its existence.

In this opinion, we think, the court erred : there was competent and sufficient evidence of Rainy’s release, and his evidehCfe should have been admitted. In Greenleaf on Evidence, 475-8, it is laid down, that “ it is not necessary that the release be actually delivered, by the releasor into the hands of the releasee. It tóay be deposited in court for the use of the absent party. Or, it may be delivered to the wife, for the use of the husband.” We think this doctrine just and reasonable. When a witness has been interested, it is enough, that he has been so released, by the party to whom he was responsible, that he is no longer liable, and that he knows he is so released. Here the party offered to prove the execution of duplicate releases ; one of which was filed in thé 'clerk’s office, and ready to be produced and proved, and the Counterpart proved by the witness, to have been received by him, before he gave his evidence, and a copy thereof appended to his deposition. The evidence could not well have been more full aá to the execution of the release and its delivery, when the parties resided so remote from each other.

5. The result of our examination of the second point, would dispose of the case here ; but, as it must be remanded, it is prO^ per that we should notice the charge of the court, which was iii effect, that adverse possession for six years, although such possession may have been had in other States, and not in the State of Alabama, was sufficient to give the plaintiff below a good title to the slave.

The true principles, which govern this question, were laid down in the case of Goodman v. Munks. [8 Porter, 84.] In regard to remedies, for the enforcement of contracts, or to obtain compensation for a breach, they are to be regulated and pursued according to the lex fori, and not the law of the place, where théy aré made. But the nature, validity, construction, and effect of contracts, are to be ascertained by the lex loci contractus — arid , that law is considered as much a part of the contract, as if it were expressly inserted in it. Here, the plaintiff below i;elied on evidence of his adverse possession for six years — not in Alabama— nor did he prove such possession in any one State, for a sufficient length of time, to constitute a bar to a recovery in that State, so far as any thing is shewn by the record, Ifj for example, the plaintiff had shewn such a possession for four or six years, in South-Carolina, or in Mississippi; -and that, by the laws of South Carolina, or Mississippi, a possession for the length of time, proved in either, would have protected his title, or barred a recovery against him ; or if the length of his possession in Mississippi, added to that in South-Carolina, had been shown sufficient to constitute a bar, under the laws of Mississippi, the charge of the court below would have been correct. But such is not the state of facts shewn by the record. The court held, that such adverse possession would give the plaint.ff a title, in whatever other States held. The rule, as laid down by this court in the case of Goodman v. Munks, before cited, is, that when personal property has been adversely holden in one State, for a period beyond that prescribed by the laws of that State, as constituting a bar to recovery, and after that period has elapsed, the possessor removes into another State, which has a longer period of prescription, the original holder cannot successfully assert a title in the latter State against the possessor. [See the case of Goodman v. Munks, 8 Porter, 94-5, and the cases there cited.]

Such being our view of the authorities, we think the charge of the court below was erroneous.

4. In regard to the last assignment of errors — the judgment not being entered in the alternative — there is error. But, the verdict being properly rendered, the judgment could be very easily and safely amended. It is, however, unnecessary to examine this point. For the errors before noticed, the judgment of the court below must be reversed, and the cause remanded.