17 Ala. 314 | Ala. | 1850
This was a trial of tbe right of property between Elizabeth Hadden, (whose executors have succeeded her in the suit,) as plaintiff in attachment against one Lewis, and Powell, the claimant of the property, which was corn and cotton, on which the attachment was levied.
The Circuit Court on the trial admitted proof of the declarations of the defendant in the attachment, which were made late-in August or early in September 1846, while he was in possession of the property levied on, that he had sold the same to* Powell, the claimant. This was the only evidence on the part of the claimant of his title to the property, except that be proved that Lewis had been indebted to him for supplies to his family. The Circuit Court having admitted these declarations, charged the jury in the further progress of the cause in reference to-the claimant’s rights, “ that if the jury should believe that lie had purchased” the property, &c. thus treating the declarations as-evidence of the purchase, for there was no other evidence of it. In both points we think there was error, and as they are reserved by the bill of exceptions, tbe judgment must be reversed. The declarations of a tenant in possession of land, when part of the res gestee, are admissible; and the same rule prevails in relation to personal property. The declarations of a person so in possession may be received to explain the nature of his possession, as whether he held under a claim of his own or under another. But in this case the declarations proved were not of that character, but went far beyond it. They were the only evidence of the claimant’s title. For such a purpose they were-inadmissible and should have been rejected. — McBride & Wife and others v. Thompson, 8 Ala. 650, where the rule is correctly stated; Abney v. Kingsland & Co. 10 Ala. 355; Gary v. Terrill, 10 Ala. 206. It is to be observed that the declarations were not res gestee in respect of the sale, but related to a previous sale, and as evidence of it were inadmissible.
Lot the judgment be reversed and the cause remanded.