Duckworth's Ex'rs v. Butler

31 Ala. 164 | Ala. | 1857

RICE, C. J.

— The main controversy is in relation to the negroes mentioned in the deed of Mrs. Butler’s father, dated 2d November, 1844, and the money paid on account of them to Bragg. From the evidence, we believe that the negroes originally belonged to the husband of Mrs. Butler; that he mortgaged them to Bragg; tlrat they were redeemed by her father, at the request of her husband, and upon the understanding and agreement that they should be conveyed as they were conveyed by the said deed of November 2d, 1844; and that the redemption was effected with money either belonging to her husband, or furnished upon his credit and promise to repay. The negroes of the husband, redeemed and conveyed by the father of his wife in accordance with such an understanding and agreement, cannot bo justly regarded or treated as negroes conveyed by her father to her by way of advancement. The transaction is, in substance, a provision by the husband conferring a separate estate in the negroes upon his wife. Iler father is used as a conduit to pass the title of the negroes, from the husband and Bragg, to the trustee named in the deed of November 2d, 1844, for her benefit. Under such circumstances, that deed cannot be regarded as a conveyance of the negroes by her father to her, by way of advancement, nor as an ademption or Satisfaction, either in whole or in part, of her legacy under his will bearing date prior to the date of the deed. — May v. May, 28 Ala. R. 141; Grey v. Grey, 22 ib. 233; Walton v. Walton, 14 Vesey, 324; 2 P. W’ms’ Rep. 357; Newnan v. Wilbourne, 1 Hill’s Ch. R. 10; Green v. Howell, 6 Watts & Serg. 203.

If the money, with which her father redeemed the negroes from Bragg, was his own money, and not the money of her husband, the evidence shows that he paid it out under the agreement and understanding above mentioned, and upon the promise of her husband to refund it. Money of her father, thus paid out, may create a debt against her husband, but cannot be regarded as an advancement by her father to her, nor as an ademption or satisfaction, either in whole or in part, of her legacy under the will of her father bearing date prior to the payment.

2. The offer of the executors to read in evidence the answer of Bandall Duckworth, one of the executors, to the bill in chancery, or such portions of the answer as were responsive to .the bill, — the bill not being in evidence, was rejected by the court. We cannot say there was error in that respect. The answer is not set out, and the bill was not in evidence. And it is impossible for us to say, under these circumstances, that the whole answer, or every responsive portion thereof, was legal and relevant evidence. As we cannot say that, we cannot say there was error in rejecting the oiler. "We cannot reverse merely because we cannot see that the court below acted correctly. To authorize a reversal, it must appear from the record, that'the action or ruling of the court below was wrong. The record does not show that any ruling of the court below, excepted to by the appellants, was wrong; and the judgment must be affirmed.