| Ala. | Dec 15, 1877
The record in this case shows that the debt, on which Alexander Hamilton recovered judgment against Wm. H. Blackwell, was contracted in 1862. The deed, under which Lucy Blackwell claims, was executed in October, 1866. No money was paid in the purchase; but the alleged consideration of the deed was a debt, past due, from Wm. H. to Lucy Blackwell, said to be much larger than the recited consideration of the deed — fifteen hundred dollars. On the clearly established fact, that the debt to complainant was older than the deed to Miss Blackwell, the burden was on her to show by proof that the debt from her brother to her, to the extent of fifteen hundred dollars, really existed; and,
The defendant’s proof consists of her own and Wiggs’ depositions. Her own testimony, considered by itself, is far from satisfactory. Many of the items composing her claim, if not all of them, are vaguely stated, and chiefly from hearsay. She evidently misunderstood the nature and purpose of the first charge in her account — “ one-third of amount paid, $1500 — $500.” If this item means any thing in the account, it is an averment that she had paid, for the three owners, $1500 — probably in the purchase of the land; of which her brother owed her one-third, $500. When asked to explain this item, she, in her deposition, answers, “ The fifteen hundred dollars claimed as due me, was paid for my brother’s interest in the land in controversy.” This is all the testimony offered in support of this charge; and if true, it shows that William H. was entitled to a credit of $1500 therefor, instead of being debited with $500, as he was. She swears she paid for her brother, to Peebles & Bro., $450, and through her brother-in-law, Wiggs, to Smith & Boberts, $157. Wiggs proves payments to these parties by Miss Blackwell, but fails utterly to prove they were made on account of Wm. H. Blackwell. And the witnesses Peebles and Smith testify that Miss Blackwell made payments to them on her own account; and the former exhibits her account, showing such payment by her, of $441. They have no recollection or memorandum of payments made by her on her brother’s account; and their testimony tends strongly to show she never made such payments. Her testimony, of cotton and stock sold, in which she had an interest, is also vague, and entirely unsatisfactory. If her claim be just, she could have fortified it in many particulars. Her brother could have explained the items which she leaves in such great doubt; and no excuse is offered why his testimony was not taken.
On the other hand, it is shown, by all the proof, that Wm. H. Blackwell continued in the undisturbed possession of the land, as he had done before, up to the time when this bill was filed, more than four years after the deed was made to his sister; and the witnesses Pickett and High testify, that Miss Blackwell, just before the commencement of this suit, admitted her brother’s ownership and right to control one-third of the land. We think there is a failure to prove a valuable consideration for the deed from William H. to Lucy Blackwell, and that the complainant in the court below is entitled to relief. — 2 Brick. Dig. 23, §§ 122, 123, 124, 125; Crawford v. Kirksey, at the last term.
The decree of the chancellor is reversed, and a decree here
Eeversed and rendered.