22 Ala. 446 | Ala. | 1853
In the case of Dubose v. Young,
The bill of exceptions shows, that in the contest which arose in relation to the record of the deed, the clerk of the court in which it should have been recorded, was offered as a witness, and testified, that he had received the deed, and handed it to his deputy to register; that he was in the habit of examining his work, and that he had no doubt that the record exhibited was the record of the deed of trust which was before the court. The portion of this testimony which was matter of opinion was objected to, and the overruling of this objection is made the basis of one of the assignments of error. We are clear that this evidence was illegal, and should not have been received; and although its admission could not have availed the plaintiff in error, if the record was admissible without it, yet, as we have already seen, such was not the case, and as the record was admitted apparently upon this testimony, we cannot say that it worked no injury to the party objecting. Prom another portion of the record it appears, that evidence was offered to show that the defendant was a bona fide purchaser; and the fact as to whether the deed of trust was recorded, was an important question, so far as he was concerned. Our conclusion is, that the court erred
In relation to tbe several charges which were requested on tbe part of tbe plaintiff in error, we are of opinion that they were properly refused. Tbe evidence, as disclosed by tbe record, tended to show that tbe defendant was in tbe possession of tbe harness, as well as tbe wagon, before suit brought. Conceding, for tbe purposes of tbe argument, tbat a full de-fence may bave been made out against tbe right of tbe plaintiff to recover tbe wagon, does it follow tbat the harness could not bave been recovered ? Tbe several charges, if given in tbe terms in which they were asked, would bave been equivalent to instructing tbe jury, tbat tbe plaintiff could recover nothing, if upon tbe law be was not entitled to recover tbe wagon.
For tbe error we bave referred to in tbe admission of tbe record, tbe judgment is reversed, and tbe cause remanded.