Daffron v. Crump, 69 Ala. 77

69 Ala. 77 | Ala. | 1881

STONE, J.

The present record does not inform us whether the wheat and cotton, which were used in paying for the oxen, were produced before or after the marriage of claimant'with Mr. Daffron. If before, then they were of the corpus of her estate. If afterwards, they were income and profits. The proper settlement of this question enters materially into the power and authority of the husband over their proceeds, and •consequently into the question of ownership of the oxen. If the wheat and cotton were of the corpus of the wife’s estate, then, inasmuch as the title to chattels is not usually evidenced by writing, and there is no evidence that the title 'to the oxen was conveyed in writing, the fact that the husband negotiated the purchase would not determine the ownership of the oxen. The proceeds of the sale of such property “is the separate •estate of the wife, and may be reinvested in other property, which is also the separate estate of the wife.”' — Code of 1876, § 2709; Evans v. English, 61 Ala. 416, 422; Marks v. Cowles, 53 Ala. 499; Sterrett v. Coleman, 57 Ala. 172. So, if the purchase was made with the proceeds of the corpus of Mrs. Daffron’s estate, and if no paper conveyance was made to Daffron, and if, as testified by "Wright, the seller, “nothing was said at the time as to who he was purchasing the oxen for,” then they became the property of Mrs. Daffron. — Evans v. English, supra.

If, however, the wheat and cotton, with which the oxen were paid for, were produced after the marriage of Mr. and Mrs. Daffron, the rule is different. Such income and profits go to the husband, who administers the same, “and is not required to account with the wife, her heirs or legal representatives ” for the same. True, he receives them only as trustee, and so long as they remain income and profits, they are not subject to the payment of his debts. — Code of 1876, § 2706. When, however, they are used by the husband in the purchase of property, the trust follows them no farther. They then become property of the husband, with all the incidents of property belonging to him. — Early, Lane & Co. v. Owens & Co., 68 Ala. 171. The charge given can hardly be reconciled with the above views.

In Nelson v. Iverson, 24 Ala. 9-18, it is declared that ownership of personal property is a fact to which a witness may testify. Each of the witnesses, Mr. and Mrs. Daffron, proposed to testify as to the ownership of the property. This testimony was ruled out on the objection of plaintiff in execution. In this the Circuit Court erred. The witnesses should have been allowed to answer the question. Of course, on cross exafnination, they could have been required, to state the particular facts, on which the claim of ownership rested. — S. & N. R. R. Co. v. McLendon 63 Ala. 266.

Two principles of evidence, settled in this State, will probably arise on another trial. In trials of the right of property, declarations or admissions by the defendant in execution, made in the absence of the claimant, are, as a rule, not admissible. They come under the class of hearsay evidence. But parties in possession of such property may make declarations explanatory of their possession, and either claim or disclaim ownership of the property, and such declarations may be given in evidence in an issue of disputed ownership, no matter who may be the parties to the suit. This, because they are supposed to constitute a part of the res gestae. Such declarations, however, must not go beyond the time at which they are spoken. A declaration as to how title was acquired, is not admissible. — Thomas v. Degraffenreid, 17 Ala. 602; 1 Brick. Dig. 837, §§ 461-2, 4, 471-2; Hicks v. Lawson, 39 Ala. 90; 1 Brick. Dig. 838-9, §§ 487, 490, et seg.; Perry v. Graham, 18 Ala. 822. What is here said is intended more as a guide for another trial, than as a ’special comment on the rulings on those questions shown in this record. We reverse alone on the refusal of the court to receive testimony of ownership by Mr. and Mrs. Daffron.

Reversed and remanded.