Goodgame v. Cole & Co.

12 Ala. 77 | Ala. | 1847

GOLDTHWAITE, J.

1. It is possible most of the qués-tions presented on this record might have been otherwise ruled, without affecting the result; but this is no reason against their revision here, as it is impossible to say what influence the rejected testimony might have had with the jury. It has been well said, the affairs of men consist of a complication of circumstances so intimately interwoven, as-to be hardly separable from each other. Each owes its birth to some preceding circumstances, and in its turn becomes the prolific parent of others; and each, during its existence, has its inseparable attributes and its kindred facts materially affecting its character, and essential to be known in order to a: right understanding of its nature. These surrounding circumstances may always be shown to the jury along with the' principal fact. [Greenl. Ev. § 108.] In every transaction where fraud is imputed, it must be conceded to be of essential importance the jury should be put in possession of every fact and circumstance tending to elucidate the question. It is impossible to say the same conclusion would arise in the mind of any one, of the validity of a transaction carried on by parties secretly and without any known motive, and' one' which was transacted at the instance, or on the advice of another. In this view, the fact that the claimant was advised by the witness to come to this State for the purpose of securing a debt, is a circumstance bearing upon a sale recently' made, in connexion with that avowed object. It is entirely distinct from proof that the one party was indebted to the' other, and did not tend to establish that fact: but when a consideration was otherwise made to appear, would certainly be admissible to show, in some degree at least, that the object of the journey to this State was not to take a pretended-conveyance.

2. The question next in order, has become one of considerable importance, as affecting the general practice, since the enactment of the statute by which defendants in execution are excluded as witnesses in claim suits. As this source of evidence is cut off, it is evident that cases may arise in which there may be great difficulty in showing the consideration for sales of property made by a debtor to a stranger, yet this difficulty cannot effect a change of established rules. It has several times been held in this court, that the recitals in the deed made by the debtor, or admissions by him at the time of its execution, were not evidence. [McCain v. Wood, 4 Ala. Rep. 258; Branch Bank v. Kinney, 5 Ib. 9.] In the first of these cases, the rule is stated with reference to a deed, and admissions made after the accruing of the debt to the creditor contesting the deed, and in the last we presume the same condition of facts existed, although not stated in the report of the case. The objection to such evidence is said to be, that it can at any time be manufactured by one indebted, and by means of it a creditor might be defeated, as it would in most cases be impracticable to prove a negative, or disprove what the debtor asserted as the consideration. It is very possible the rule is confined to declarations and admissions made after the creation of the contesting creditor’s debt, as until then, there is no reason why even a voluntary conveyance may not be good. Indeed, such seems to be the settled practice of the English courts, when it becomes necessary to prove the debt due to the petitioning creditor, in a suit by the assignees of a bankrupt. In such a suit, the bankrupt is not a competent witness, (Chapman v. Gardner, 2 H. B. 279); yet his admissions of indebtedness, made before the act of bankruptcy, may be given in evidence, though they cannot be if made after the act. [Smallcombe v. Watts, 13 Price, 131; see also Greenl. Ev. & 181.] This seems to be the precise principle which is adverted to in McCain v. Wood, before cited, and will let in as evidence admissions made by the debtor prior to the creation of the debt, which the attaching creditor is seeking to enforce against his as-signee or grantee. What weight such admissions would be entitled to in the minds of the jury, it is evident would depend on the circumstances of the case, but in principle they seem to be admissible, if made by the debtor at a period of time when it is not his interest to make them, and when they cannot affect the creditor, against whom they are afterwards used. It will thus be seen, the test of the admissibility of such admissions, is not the length of time previous to ' the trial, but that it is the fact whether at the time the debtor had an interest in creating a title in another to defeat the particular creditor. Whether the fact of a similar interest to defeat some other creditor would not produce the same effect, is a matter we need not consider at this time. The same remarks apply to the other admissions offered in evidence, as having been made anterior to the supposed sale of the slaves.

3. What transpired at the sale was proper evidence on the principle first stated. It was a part of the transaction of sale, and independent of the effect it would have as proof of the consideration passing, the admission should have gone to the jury. As proving consideration, it was entitled to no weight, if the creditor’s debt was existing at that time, (McCain v. Wood, 4 Ala. Rep. 258); and if the evidence on the part of the creditor induced a suspicion of the fairness of the transaction, it was incumbent on the claimant to prove the payment of an adequate consideration. [Seamans v. White, 8 Ala. Rep. 656.]

4. With reference to the proof of declarations by the vendor, when remaining in possession of the slaves after the period when, by the ordinary course of trade, they should have passed to the possession of the vendee, we think it well established they were admissible, on the ground that there was evidence from which a fraudulent transaction between the vendor and vendee might be inferred from there being no change in the possession. [Borland v. Mayo, 8 Ala. Rep. 105; Cowen & Hill’s Notes, 177, and cases there cited.]

The court having erred, however, in the other particulars, the judgment is reversed, and the cause remanded.