Julian v. Reynolds

8 Ala. 680 | Ala. | 1845

COLLIER, C. J.

1. There can be no question, according to the decisions in this State, that Mrs.. Mosely might have purchased the property of her intestate’s estate, at a sale thereof made according to law; and in the a'bsence of any thing shown to the contrary, it will be presumed that the common law of South Carolina is. accordant with our decisions. This is sufficiently established by the cases cited by the counsel for the plaintiff in error.

These are principles which we do not understand are controverted in the present case. Mrs. Mosely, admits that she purchased the slaves with money belonging to the estate, for the benefit of the distributees; and hence it is contended that she acquired no title to them in her own fight, but, that she held them in trust, and they must be distributed as the money would have been, had she retained it. That the distributees, had they so elected, might have considered the purchase as a conversion of the assets of the estate, and charged her with the money and interest, but they have thought proper to treat her as a trustee. This argument, we think, is well founded, both in reason and upon authority. Such being the law, Mrs. Mosely could not defeat the trust, by the gift she made to her daughters, and consequently it is not essential to the relief prayed, that the bill should alledge, that the deed sought to be set aside is tainted with fraud.

. 2. It is said to be a strict rule, that the answer of one defendant shall not be read in evidence against another; the reason being, that there is no issue between the parties, and there has been no opportunity for cross-examination. [Gresly’s Eq. Ev. 24.] But this rule it is said, does not apply to cases where the other defendant claims through him, whose answer is offered in evidence ; nor to cases where they have a joint interest, either as partners or otherwise, in the transaction. [Greenl. Ev. 210 ; 3 Phil. Ev. C. & H.’s notes, 931-2, and cases there cited.

An answer in Chancery, when offered in evidence, is regarded as a declaration, or admission of the party making it, and where the confession of the respondent would, with respect to others, be res inter olios, it cannot be received. [1 Starkie’s Ev. 288,291; 2 Id. 36-7; Greenl. Ev. 210-11, and cases cited in the notes to each of these.] None of the cases cited for the defendant in error allow greater latitude in admitting an answer than this. Osborn v. The U. S. Bank, 9 Wheat. Rep. 831, recognizes the rule as we have laid it down, and holds, that where a defendant dies after having answered a bill, his answer is evidence against one who comes in as his representative.

The defendant, Julian, declares that he does not know, that Mrs. Mosely purchased the slaves which she gave to his wife and daughter Martha, with the money of her intestate’s estate; and the answer of Mrs. Mosely is offered to countervail the effect of that declaration, made under oath, in response to the bill, It is perfectly clear, that a deed of gift cannot be defeated by the statements of the donor, made subsequent to its execution ; and the answer of a co-defendant cannot be received for that purpose, where his declarations would be incompetent. There was then no evidence to show that the deed to Mrs. Julian and her sister, was inoperative, in consequence of the invalidity of the donor’s title.

3. Although the intestate died in South Carolina, his estate was there administered on, and the slaves were there sold, and purchased by Mrs. Mosely, yet as they were brought by her to this State, a Court of Chancery may entertain a bill at the suit of a distributee, to coerce their distribution, &c. Calhoun v. King, et al. 5 Ala. Rep. 523, is a conclusive authority upon this point.

4. To a bill like the present, all persons interested as heirs, or distributees of the intestate should be made parties, that their rights may be adjusted* and the estate finally disposed of. Although John Mosely may have received his share, it is perhaps proper that he should be made a party, that the decree may conclude him. If Jacob Tillman is dead, we can perceive no reason why his personal representative should be joined.; never having reduced his wife’s share into possession, either actually or constructively, no interest vested in him, that could be transmitted on his death.

For the second point considered, the decree is reversed, and the cause remanded.