14 Ala. 814 | Ala. | 1848
In Grey v. Young, 4 McC. Rep. 38, which was an action for the breach of warranty of the soundness of a slave, the declarations of the slave that he had a pain in the side, which declaration induced the discovery of his disease, were received against the defendant. The competency of this evidence was rested upon the ground that it was mere inducement, and admissible from necessity. But in another case, the declarations of a negro were judged inadmissible, because he was an incompetent witness; it was however held, that they might be received in connection with, and as the foundation of the opinion of a physician to whom the communication was made. Tumey v. Knox, 7 Monr. Rep. 88. The declarations of a sick negro to her physician, were held inadmissible in Georgia, except as to the disease of which she was afflicted at the time of the conversation. Brown v. Lester, Geo. Dec. part 1, 77.
The tacit recognition of relationship, the disposition of, or devolution of property, and many similar facts and circumstances, from which the opinion and belief of those who must be presumed to know the fact, may be inferred, is certainly entitled to much consideration. Greenl. Ev. <§> 105. Under the influence of this rule, it has been held, that it was allowable to prove that a negro child was in the habit of calling a negro woman mother, and that they were treated by the family to which they belonged as bearing such a relation to each other. White v. Strother et al. 11 Ala. Rep. 720.
Where a witness is prima fade incompetent, on the ground that he is a slave, his declarations are inadmissible as evidence to establish his status. Fox v. Lambson, 3 Hals. R. 275.
These citations are more nearly in point upon the question arising in the present case on the admissibility of the declaration of the slave levied on, thaii any we have seen; but they do not in our opinion sustain the decision of the circuit court. The cases in McCord’s and Monroe’s Reports, and Georgia Decisions are referable to the doctrine of res gestae
Negroes, whether bond or free, are incompetent to testify in a suit between white persons, and we know of no principle which would authorize the admission of their unsworn declarations to establish an independent fact. Here the witness saw the slave coming from the direction of the house of the defendant in execution, and going in the direction of a new ground of the claimant, with an axe on his shoulder, and in reply to a question by the witness, the slave answered, “ he was going to some new ground to work.” The particular fact to be shown was, that although the slave seemed to be coming from the defendant’s house, he was in the claimant’s employment, clearing his land; and this was the res gestae — the subject matter, or thing done. This simple statement is quite enough to show, that there was no res gestae to which the declaration can be referred as an element, or constituent part. It does not even appear that the slave' performed labor at the place designated — the only evidence that he did, or intended to do so, is the answer of the slave himself, to the inquiry of the witness. This certainly cannot be admissible for that purpose, and the testimony, except as to the fact that the slave was seen with an axe on his shoulder going towards the claimant’s new ground, from the direction of the defendant’s house, was improperly admitted. See Brown v. Lusk, 4 Yerg. Rep. 210.
In Hobbs v. Bibb, 2 Stew. Rep. 54, it was decided that the possession of personal property remaining with the vend- or, after an absolute sale, is presumptive evidence that the ownership is unchanged; this presumption may be rebutted by explanatory, or countervailing proof. This case was reaffirmed in Ayres v. Moore, Id. 336, and it was held, that the . continuing possession of the vendor was not excused by proof that the sale was bona jide and an adequate considera
In the P. & M. Bank of Mobile, v. Willis & Co. 5 Ala. 770, this court said, the retention of possession of a chattel by the mortgagor, is entirely consistent with the nature of the security. But if the mortgagee retains the possession for an unreasonable length of time after the mortgage is forfeited, this may warrant the inference that the debt was paid, or that the mortgage was held up as a protection for his property against the demands of creditors. Yet in such case it cannot be assumed as a conclusion of law, that the mortgage is fraudulent. See also, Simerson v. The B. Bank at Decatur, 12 Ala. 205.
It seems that the rule which declares that an absolute transfer of personal chattels without, the delivery of possession, is prima facie evidence of fraud, does not strictly apply to a public sale of goods under execution, or perhaps under deed of trust, where a person other than a creditor becomes the purchaser. Abney v. Kingsland & Co. 10 Ala. R. 355 ; Simerson v. The Br. Bank at Decatur, 12 Ala. Rep. 205.
Henderson v. Mabry, 13 Ala. Rep. 713, is not in conflict with Borland v. Walker, supra. True, the judge who delivered the opinion, went beyond what the facts seem to have required, and supposed the bad health of the vendor’s wife, and her relation to the vendee, excused the transaction from the imputation of fraud, as an inference from the retention of
The distinction between an absolute sale and a mortgage of goods, as to the effect of the vendor or mortgagor’s possession, is abolished by statute in New York; and it has been there held that a mortgage of personal property is fraudulent' as against the creditors of the mortgagor, where there is not an immediate delivery, followed by an actual and continued change of possession; although the mortgage is made in good faith, and without any intent to defraud, unless the continued possession in the mortgagor is satisfactorily explained. Further, it is not a satisfactory explanation of the mortga.gor’s possession, that he was a traveling or missionary preacher of the gospel, and that the use of the mortgaged property, which was a horse, was necessary to enable him to pursue his, vocation. Upon this evidence the court decided .against the mortgagee, without submitting to the jury tire question of fraudulent intent. 16 Wend. R. 528.
It is- confessedly, often a difficult question to determine when the inference from the continued possession is satisfactorily repelled. We are unable to educe from the books any general rule by which the facts of every case may be scanned, and their legal effect ascertained. Under such circumstances, the proper course is to adhere as near as may be to precedent, and the lights which are furnished by legal analogies — con
If our own decisions are to be followed, we think the possession of the defendant in execution has not been explained so as to remove the inference of fraud deducible from it, by merely showing that he was a brother of the claimant, with a family dependent on him, and that the claimant was a man of fortune. This merely proves the absence of mala fides in fact, and that the claimant was influenced by feelings of benevolence, but does not repel the inference which the law draws from the possession. If the intention of the vendee to perform an act of kindness towards the vendor would furnish a sufficient explanation for the retention of the slave, then the vendee need only show that the sale was bona fide, and the consideration either paid, or intended to be paid; and this much it might be necessary to prove, even where there had been a change of possession, against the creditors of the vendor. A desire to serve the vendor might be successfully invoked in every case, as it would be inferable from allowing the property to remain with him. It will not do to make a distinction where the vendor is a near relation; in such case the impulse would be stronger, but still the vendee might be influenced by benevolence towards a friend, or even a stranger. Besides, as the motive to serve a father or brother would be more potent, the temptation to practise fraud would be in a corresponding ratio. Independent of authority, this view seems to us to be consonant to law, and satisfactorily establishes the incorrectness of the charge of the circuit judge to the jury.
We will not go beyond what duty demands of us in this case, and inquire, or even intimate whether the facts recited in the bill of exceptions indicate, that although the bill of sale is absolute in its terms, it was intended as a security against the consequences of the vendee’s suretyship for the vendor — if so, whether it would not be treated in equity as a mortgage, and at law the vendor’s possession, in the ab;sence of other evidence of fraud, be consistent with it. These
It remains but to add, that the judgment of the circuit court is reversed, and the cause remanded.
