Horton v. Smith, 8 Ala. 73

Horton v. Smith

8 Ala. 73 | Ala. | 1845

COLLIER, C. J.

In Wier v. Davis and Humphries, 4 Ala. Rep, 442, it appears, that an administratrix sold, at private sale, a slave belonging to the estate of her intestate; that afterwards, a creditor obtained a judgment against her, in her representative character, and caused an execution issued thereon, to be levied on the slave, in the possession of a person who had purchased from the vendee of the administratrix. It was held, that an administrator is not authorized to sell the personal estate of his intestate at private sale, and the purchaser, under such circumstances, does not acquire a valid title. But the Court said, although the title of the estate is not divested by the unauthorized sale, yet it does not follow that a creditor can subject the property to sale, under execution. “We have never understood, that an execution against the goods and chattels of any person, could be so used as to transfer a mere title, unaccompanied by the possession. It is obvious, that such a rule would be liable to abuse, from collusive arrangements, by which a person out of possession, and with a doubtful title, would substitute another in his place, clothed with the more imposing title of purchase under a sheriff's sale. *77Added to this advantage, the possession-itself would be changed by the seizure, and transferred to the1 purchaser.” Further— “ The relative condition of the parties .would be entirely reversed, .arid the unquestioned possession which before was held under a defective title, would be turned into a mere right of action. We apprehend it is well settled that.the mere right of action of a defendant in execution to personal property is not the subject of a levy. [Commonwealth v. Abel, 6 J.J. Marsh. 476; Thomas v. Thomas, 2 Marsh. Rep. 430, and cases there cited.”]

In the case from which we have so largely quoted, the Court also cite Goodwin v. Lloyd, 8 Porter, 237; Brown v. Lipscomb, 9 id. 462; in which it was determined that-a person who has a mere right of action to personal property cannot transfer it, so as to authoi’ize a suit in the name of the purchaser; and say that it is always a question for the jury, whether the adverse possession is bona fide; if this is wanting, the transfer, whether by sale or execution will be inoperative.

We have cited thus, at length the case reported in 4 Ala. Reports, because it seems to us to be conclusive of the present, both upon the charge given and refused. The facts show that the claimant holds the slaves in question, under a title adverse to the defendant in attachment; whether it be superior, or not, is immaterial in the present inquiry; for the conflict of title depends, not upon the fact, that one is better than the other, but upon the opposite'pretensions which the parties set up to the same object.

It is not necessary, in the posture in which this case comes before us, to consider whether the slaves conveyed by the deed, in ti’ust for N. J. Talliaferro, reversed to the donor by the death of his son, during his minority. If this be so, the interest of the defendant in attachment, we have seen, is a mere right of property, not acquiesed in by the party in possession, and consequently not liable to seizure, by mesne or final process.

The charge given, it is true, does not refer the bona fides of the possession of the claimant to the jury, but assuming that it originated, and is continued in good faith, the Court say, that the rever-sionary interest of the defendant can’t be reached, by an attachment sued out at the suit of his creditor. This charge, if there was evidence tending to prove mala fides, would be objectionable, but as thqre was no such proof, it was not necessary to embarrass the inquiries of the jury, by laying down the law upon a point which did not arise out of the evidence.

*78The admissions or declarations of the assignor, vendor, or holder of personal property, made before the sale, assignment,or other departure with his interest, are evidence against his vendee, assignee, or other person claiming under him, immediately or remotely, either by act and operation of law, or by the acts of the parties. And his declarations, with regard to his rights and liabilities, are in like manner evidence against any one coming after such declarations made, into his place, or representing him in respect to such rights and liabilities. In case of a sale, it is said, that such declarations of the vendor made previous thereto, as would be evidence against himself, are also admissible against his vendee. And this without regard to the question, whether the vendor be a competent witness, alive, capable of attending Court, and within reach of its process. The cases on this point, are collected by Cowen & Hill, in their notes to Phillips on Evidence, (2 vol. 596 to 603, and 656 to 669.) This statement of the rule will show, that the evidence oí the declarations of the claimant’s vendor were admissible upon principle; and the only remaining question is, was the plaintiff prejudiced by their exclusion.

In Fenno, et al. v. Sayre & Converse, 3 Ala. Rep. 458, we held, that a derivative purchaser, without notice, cannot be affected by a notice to his immediate vendor; and if he purchases with notice, he may protect himself by the want of notice in such vendor. Sugden says, that although a deed be merely voluntary, or fraudulent in its creation, and avoidable by a purchaser, viz: would become void by a p erson purchasing the estate, yet it may become good by matter ex post facto; as, if a man make a feoffment by covin, or without any valuable consideration, and then the first feoffor enter and make a feoffment, for a valuable consideration; the feofee of the first feofee, shall hold the lands, not the feofee of the first feoffor; for although the estate of the first feoffee was, in its creation covinous, or voluntary, and therefoi’e voidable, yet when he enfeoffed a person for a valuable consideration, such person shall be preferred before the last.” [Sugden on Vendors, 471; Bumpass v. Platner, 1 Johns. Ch. Rep. 212; Rochelle v. Harrison, 8 Porter’s Rep. 351; Eddins v. Wilson, 1 Ala, Rep. N. S. 237.] Now if the claimant was a bona fide purchaser, without notice of a fraud, or of facts, which the law considers sufficient to establish it, or from which it is inferrable, then he could not be affected by a notice to his vendor. There is nothing *79in the record, as we before remarked, on which the imputation of unfairness in the claimant’s purchase can rest, This being assumed, the liability of the slaves to the attachment of the plaintiff, cannot be maintained; for then the claimant’s possession would be Iona fide, under a claim of right, honestly acquired, which, we have seen, cannot be divested, by the levy of an attachment, or execution. The rejection of the evidence then, did not injuriously affect the plaintiff. The judgment of the Circuit Court is consequently affirmed.