1 Port. 175 | Ala. | 1834
This was an action to try the right of property. /
The property was levied on as the estate of Philips, and claimed by Mr. McGrew. The facts of the case are represented by a bill of exceptions, and in substance are — that an execution issued from the office of the Circuit Court of Greene county, on the twenty-ninth March, 1830, in favor of Hart, against James L. Philips. The execution was levied by the sheriff of Marengo county, on certain slaves, as the property of the said Philips, which were claimed by John C. McGrew as his property. On thé trial of the issue, the plaintiff in the execution proved that the slaves had been for several years
Under these facts, the court charged the jury, that if a party who has a conveyance of property, omits to take possession of it within a reasonable time after the right to the possession accrues ; it is presumptive evidence of fraud : and if McGrew, the claimant, omitted to take possession of the property, mentioned in the conveyance, executed by Philips to him, within a reasonable time — or omitted to make exertions to obtain it within a reasonable time after he came of age, it was presumptive evidence that the conveyance was fraudulent. The court further charged the jury, that if the property, or any part of it, belonged jointly to John C. McGrew and William P. McGrew, the claimant could not sustain his claim to such part; and that it would be their duty to find it subject to the plaintiff’s execution — that claimant could not be permitted to defeat the claim of the plaintiff in the execution, by showing, that the right and title to the property levied on, was in any other person than himself. The claimant, by his counsel, requested the court to charge the jury, that if they believed that John C. McGrew and William P. McGrew had, by any understanding between themselves, divided the negroes allotted to them jointly, that such understanding, would be sufficient, to vest in each individually, the part allotted to him by such understanding — which the court refused, and instructed the jury, that William P.' McGrew being a minor, was incapable .of assenting to such a division.
The assignment of errors embraces all the points of law growing out of the bill of exceptions.
The first question of law arising out of the charge, is abstract, and not material to the issue. It could not be important on the trial of that issue, whether the deed from Philips to the claimant was supported by a good consideration, and was a fair and bona .fide transaction or not — since, according to the case of McGregor & Darling vs. Hall, the property secured by the deed to the claimant, was not protected from an
The second charge given by the court, is the one most relied on by the counsel for the plaintiff in error, to reverse the judgment. It is, “ that if any part of the property belonged jointly to John C. McGrew claimant, and William P. McGrew — that the claimant could not sustain his claim to such part.” The judge in this charge, among other considerations, proceeded on this principle, that the claimant of the property levied on under execution as the property of the defendant in the execution, could not be permitted to interpose the title of , a third person to defeat the execution. The correctness of this principle, we shall not controvert, as we be-
The last charge prayed, was, that if the claimant and William P. .McGrew, had, by any understanding between themselves, divided the negroes allotted to them jointly, that such understanding must be sufficient to vest in each, individually, the part allotted to him by such understanding. This charge we believe the court correctly refused, on the ground that no such understanding could be entered into by William P. McGrew. The rule, that infancy is .a personal privilege, is admitted ; subject, like all other general rules, to exceptions. It is believed to be subject to less restriction between the infant and the party contracting with him. It cannot always prevail, when other persons are to be affected by it. Suppose that John C. McGrew and his infant brother had exchanged property — would it be contended that a plaintiff in an execution against John C. McGrew would be bound by such contract r If he levied on the property given by the infant in exchange, the property would not sell for its value, on account of the uncertainty, whether the infant would con
The bill'of exceptions is somewhat vague, and does no4, sufficiently show the pertinency of some of the charges given; and some refused; but we believe, that on the second charge given, the court erred ; and, as it is possible the verdict was founded on that part of the charge, for that error the judgment ought to be reversed, and the cause remanded.
It was, however,, contended, that the verdict must have been the same, without the charge supposed to be erroneous, and that therefore, the judgment, ought not to be disturbed. The fact, that the claimant had been bound as security for Philips to deliver this same property to satisfy such judgment and decree as Hart, the plaintiff in the'execution, might recover, &c. would prevent him from afterwards setting up a claim in his own right. There is certainly-much force in this argument, and it would be a mockery of justice after he had bound himself, when this property was seized on as Phi- ' lips’ under the order of the chancellor, to see that Philips should have it, forthcoming to answer such decree as should be rendered ; to allow him, now that a decree has been renr-dered against Philips in the very case, to interpose a claim of his own to prevent a satisfaction of that decree when the property was seized under the order of, the chancellor. If -he had asserted his title, the probability is, that the sheriff would have seized other property. If he was silent, such silence would amount to a waiver of his right. We do not know, however, but there may have been other testimony. The bill of exceptions does not assume to spread it all on the record, nor do we know that the case turned on that question. It may have been that that a,reservation of his own individual title to the property was made expressly, at the time of the seizure; or it may have been in proof, that Hart had released the claimant from the consequences of his bond, as surety for Philips. If the bond stood alone, unexplained, we might pass on the legal effect of it, and say, that it was of itself suf-