98 Ala. 635 | Ala. | 1893
Schuessler Bros, sued out an attachment against one 0. P. Baird, which was levied on the 17th of October, 1891 upon certain personal property. A. "W. Mitcham claimed the property and executed a replevy bond, and an issue was made up to try . the right of property. Evidence was introduced by the plaintiff tending to show the indebtedness of the defendant in attachment, the levy of the attachment and that up to within ten days prior to its levy the' property was in the possession of the defendant in attachment, who claimed the same as his own. The claimant’s title is derived through a mortgage, executed by the defendant on the 25th day of February, 1890 upon the property levied upon under the attachment. The execution and consideration of the mortgage was duly proven, and the mortgage admitted in evidence. The mortgage debt became due Oct. 1st, 1890 and was credited with $81.94 Oct. 18th, 1890, and endorsed as follows: “It is agreed that the payment of the balance on this mortgage be extended to Oct. 1st, 1891.” There was evidence tending to show that the extension was granted, because of the inability of the mortgagor to pay the debt when it fell due. It was proven that G. T. Mitcham, husband of claimant, was her agent, and by virtue of the mortgage, with the mortgagor’s consent, took possession of the property on the 6th of Oct. 1891, and had it in possession as the agent of the claimant at the time of the levy of the attachment.
There was no error in excluding the conversation between G. T. Mitcham and the. defendant in attachment, plaintiff not being present at the time, and having no knowledge of it. The court erred in admitting the testimony of the witness Cooper. Admissions of the husband made in the absence of the wife, are not binding on her, and this is especially "applicable to his declarations as an agent as to any past transaction, or his admissions which are not explanatory of some contemporaneous act or transaction, within the scope of his authority, or made while in the execution of his agency.—Tanner v. L. & N. R. R. Co., 60 Ala. 621;
Eeversed and remanded.