Couch v. Couch

141 Ala. 361 | Ala. | 1904

¡á HARPE, J.

Plaintiff claimed title to the mule, in controversy as donee of Tilomas Couch, who was his father and who died before the beginning of this suit. The defendant, though sued in his individual capacity, is administrator of the estate of that decedent. A Avitness, after testifying that plaintiff had possession of the animal for about tivo years, stated “He said that his father gave him. the mule,” and this statement was, against defendant’s objection, allowed as evidence. In this there Avas error. The declaration deposed to- Avas not a mere claim of ownership such as- might have been admissible as res gesta:, explanatory of possession, but as pointed out in the objectoin, it Avas a declaration respecting the source of plaintiff’s alleged title and being so Avas not a proper subject of proof. — Ray v. Jackson, 90 Ala. 513; Daffron v. Crump, 69 Ala. 77; Vincent v. State, 74 Ala. 274.

Plaintiff himself testified that, while in possession of the mule after his father’s.death and after receiving notice from defendant that it would be claimed as assets of the estate, he claimed the mule as his own. This testimony was objected to on the ground that it was of a statement made post litem motam. The objection ivas overruled but should have been sustained. The declaration having been made after the controversy over the animal having arisen, though before suit was brought, the objection was well taken. — Rapalje Dict. tit. “Lis Mota ” and note; Cox v. Easley, 11 Ala. 362; 1 Greenleaf on Evidence, §§ 114, 131, 133.

The court improperly rejected an offer of the defendant to show, as affecting the credibility of a witness for the plaintiff that he, the witness, and plaintiff had filed in chancery court a bill to quiet title against the defendant and other heirs of Thomas Couch, alleging a conveyance of real estate to them bv deed of gift from Thomas Couch claimed to have been lost. The fact, if in existence, that thei witness was in such chancery suit aligned Avitli plaintiff for the establishment of title to- other property as coming by gift from Thomas Couch, might have afforded inference] that he was under a mental bias Avhen testifying in maintenance of title to the mule as coming in like manner and from like source. — Drum v. Harrison, 83 Ala. 384.

Defendant in his brief concedes the propriety of a-ruling excepted to- whereunder a Avitness was allowed to testify in behalf of plaintiff, to a statement he made qu a trial before a justice, but it is insisted that tlxerei was an error in the rejection of an offer Avhich the bill of exceptions states was made by defendant “to show by the Avitness AA’liat he meant Avhen hei made the statement at the justice trial.” Defendant Avas entitled to have the Avitness testify to facts explanatory of that statement, but not to- have him say Avhat he meant by the statement. The fact elicited from this Avitness that he Avas told by M. P. Couch that his testimony before the justice had not been taken down in AAudting was immaterial.

A witness was, against objection, allowed to testify he had no interest in the suit. The ruling involved no error.

Of the .assignment of error based on charges, only that relating to refused charge 2 is insisted on. That charge, if not otherwise! objectionable, was misleading, in that it predicated a right to have a verdict for defendant upon a hypothesized existence of particular facts while ignoring evidence tending to establish as another fact that some time, plaintiff while claiming title to the mule, had the same in his possession, which fact, if it existed, was material to be considered on the question of whether the asserted gift had been completed by delivery.

Reversed and remanded.