50 Ala. 49 | Ala. | 1873
This is an action of trover for the conversion of a horse. On the trial in the court below, the plaintiff took a nonsuit, and reserved the question in controversy by bill of exceptions; and he now moves here to have the nonsuit set aside, and for a new trial. Rev. Code, § 2759.
The evidence incorporated into the bill of exceptions shows, that on the 26th day of March, 1868, one Thomas A. Harris (colored) executed and delivered to the plaintiff, Dawson, his promissory note in the words and figures following: “ On or before the first day of November next, I promise to pay W. P. Dawson, executor of E. Bradford, deceased, or bearer, four bales of cotton, middling, for advances made me to enable me to make a crop the present year, value received, March 26th, 1868 ; ” which was signed by said T. A. Harris, who, at the same time, also made and delivered to said Dawson a contract in writing, in these words: —
“ The State of Alabama, ) Know all men by these presents, Elmore County. ) that I, Thomas A. Harris (colored), for and in consideration of the sum of two hundred and fifty dollars to him in hand paid, do bargain, and sell, and convey, unto W. P. Dawson, executor of E. Bradford, deceased, his heirs, and assigns, my entire crop, and my entire interest in the rents of crop, to be planted and grown on the
“ T. A. Harris.” [Seal.]
This instrument was attested by two witnesses, and it was filed in the office of the judge of probate of said county of Elmore for record, and recorded, as required by law, on the 22d day of July, A. D. 1868. This conveyance, and the promissory note above set out, were offered in evidence by the plaintiff, on the trial by the jury in the court below, without objection. It was also shown, that this instrument, and said note, were given to secure the payment of said advances to enable said Harris to make a crop in Elmore county, where he resided, in the year 1868. The testimony tended to show, also, that about the month of July, or August, 1868, Harris carried off the horse, and failed to bring him back to Elmore county: and that the horse was afterwards found by the plaintiff, in July or August, 1869, in Chambers county in this State, in possession of the defendant. The horse was demanded before suit brought from the defendant, by the agent of the plaintiff; and it was shown that he was worth about $150.00. The defendant proved that he had swapped with Harris for the horse, in July or August, 1868, and claimed it as his own under this swap.
The judgment of the court below is reversed, and the cause is remanded for a new trial.