Bruce ex rel. Pullis v. Sims

34 Mo. 246 | Mo. | 1863

Bates, Judge,

delivered the opinion of the court.

Under several executions issued by a justice of the peace against one Davis, and delivered to Bruce, who was a constable, a levy was made upon a negro found in the possession of Pullis. Pullis claimed the negro, and the right of property was tried before the constable and decided in favor of Pullis, and thereupon the defendants gave to the constable a bond conditioned as provided by law, among other things to pay any person claiming title to said property, all damages that such person might sustain in consequence of such seizure and sale, and required the constable to sell said negro, which he did.

This suit was brought upon that bond, and the petition averred that the negro slave was the full and absolute property of Pullis, and that Pullis had sustained damage by the seizure and sale. The answer denied that the slave was the full and absolute property of Pullis, or that he had any interest therein, and averred that at the time of the levy Davis was the full and absolute owner of the slave, and that Pullis had no interest whatever in the slave at the time of the levy or prior thereto.

At the trial,, the plaintiff proved the execution by Davis of a bill of sale to Pullis of the negro, which bill of sale expressed the consideration to be twelve hundred dollars, the receipt of which was thereby acknowledged. He also proved the payment by Pullis to Davis of two hundred dollars of the consideration at the time of the execution of the bill of sale, and that the slave was then mortgaged to one Ridgway for one thousand dollars and was in the possession of the mortgagee, and that Pullis subsequently paid off the mortgage and received possession of the negro, and retained it until the slave was levied on by the constable.

The defendants then offered to read the deposition of Davis, to which the plaintiff objected because Davis was the maker of the bill of sale and vendor of the said negro, and the court sustained the objection and excluded the deposition. Davis stated in the deposition, that he had been a partner with Pullis and a son of Pullis in trading in cattle, and described some of their business operations, and stated that Pullis was largely indebted to him in their partnership accounts, but would make no settlement with him, and that he, being largely indebted, transferred the negro to Pullis i; order to prevent his creditors from getting at the negro, and that he received no consideration whatever for the negro from Pullis ; that the two hundred dollars paid him by Pullis in the presence of a witness, he immediately paid back ; and that the mortgage to Ridgway was paid out of their partnership funds, and that the whole object and purpose of the bill of sale was to prevent his creditors from pressing him. The deposition was properly excluded. The statute declares that, “ Any grantor, vendor or assignor, in any deed, instrument or writing, affecting property, real, personal or mixed, or any claim or right therein or therefrom, shall not be a competent witness to alter, change or qualify the proper effect and operation of the words and terms of such deed, instrument or writing.”

The question is not here, whether the bill of sale may be impeached by any testimony, but whether Davis was competent to give the testimony contained in his deposition. It would be difficult to imagine testimony coming more directly within the prohibition of the above clause of the statute than this. It was clearly incompetent.

Three instructions were given for the plaintiff, which appear to be unobjectionable, and no objection has been made to them. Seven instructions were given for the defendants, and one asked by them was refused. It is as follows: “ If the jury find from'the evidence, that said negro was redeemed and the mortgage to Ridgway was paid off with partnership money, or with a note given by Abat for partnership money, then Davis had an interest in the negro, which was subject to sale under the executions of defendants, and plaintiff cannot recover in this action without there has been a settlement of partnership accounts, and Davis was found to have no interest in the partnership.”

Without going into all the objections to this instruction, it is sufficient to say that it was properly refused, because, 1st, there was no evidence that the money used in procuring Abat’s note, with which the mortgage was paid, was partnership money; and, 2d, the answer of the defendants, •averred that Davis was at the time of the levy the full and absolute owner of the slave, and they cannot be permitted to contradict their own pleading by setting up that the slave belonged to the partnership. Their averment was probably unnecessary, but, having made it, they must abide by it.

Judgment was given for the plaintiff, and it is affirmed.

Judges Bay and Dryden concur.