20 Ala. 502 | Ala. | 1852
The question presented on the first of the several charges given is, as to the effect of that portion of the second section of the statute of frauds of this State in relation to loans. The clause referred to is in these words: “ And in like manner, where any loan of goods and chattels, shall be pretended to be made to any person, with whom or those claiming under him, possession shall have remained for the space of three years, without demand made and pursued by due course of law on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made of a use, &c.; the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession; unless such loan, reservation, &c., were declared by will, or deed, in writing, proved and recorded as aforesaid and it is insisted that, as the charge concedes that the loan in this case was made in another State, where the lender and the borrowers resided, and where the subject of the loan was located, upon this state of facts the property, after its removal by the borrowers voluntarily into this State, is exempted from the operation of the clause of the statute referred to. The rule that the validity of a contract is to be determined by the law of the place where it is made, which is relied on to sustain this position, is recognized to its fullest extent; but the error of the argument consists in its application to the case under consideration. The rule itself, it is to be remembered
We are aware that the reasoning of this court, in the cases to which we have been cited by the counsel for the plaintiff in error, Catterlin v. Hardy, 10 Ala. Rep. 511, Adams v. Broughton’s Adm’r, 13 Ala. Rep. 731, and Liden v. Taylor, 17 Ala. Rep). 270, as also the case of Turner v. Fenner et al. 19 Ala. Rep. 355, deciding that the continuance of the possession for three years in this State without recording, docs not affect the title of the remainder-man, as to creditors and purchasers from the party in possession, on the ground that in
Upon tbe assumption that tbe loan was made to tbe wife and children, tbe slave having come into tbe possession of tbe husband, it is tbe same in legal effect as if tbe loan bad been directly to him and tbe children, Maull v. Hays, 12 Ala. Rep. 499; and we entertain no doubt that where a loan is made to two, or more, and tbe possession remains with one under tbe loan, and tbe other circumstances required by tbe statute to render tbe possession absolute as to creditors exist, that tbe property can be levied on and sold. We would not be understood as deciding here, that tbe interest of tbe other loanees would be divested, but simply that in tbe particular case put, tbe property could be levied on and sold on execution against tbe borrower in possession, leaving tbe other question open. It follows there was no error in tbe first charge given.
As' to the evidence objected to, tbe action of tbe court was correct. At tbe most, it could only have been admitted as a •fact, from which tbe creditor might have been presumed to have bad notice of tbe true condition of tbe property, and in this aspect we do not consider it as admissible. It follows, that for tbe error of tbe court in tbe second and third instructions, tbe case must be reversed and the cause remanded.