17 Ala. 374 | Ala. | 1850
This was an action of trespass brought by the plaintiff against the defendant to recover damages for taking and selling the slaves and other goods described in the declaration, which the plaintiff claimed by virtue of a deed of trust executed by Thomas B. Murphy to him for the purpose of securing the debts named therein. The plaintiff proved the validity of the debts secured by the deed, and that B. A. Philpott, under the instructions of the defendant, took possession of and sold the property. • The defendant then proved that Murphy, the grantor in the deed, and one Halliday, as partners in farming, had in their possession a tract of land conveyed by the deed after its execution; and then offered to prove that whilst Murphy was in the possession of the land and .after the maturity of the debts secured by the deed, he stated he got his pork from said place. The plaintiff objected to the evidence thus offered, but the objection was overruled. It is a well settled rule of law that the declarations of a vendor, made after the sale, cannot be received- to, defeat the title derived from him. In the case of Ellis v. Howard, 17 Verm. 330, it was said that the declarations of a vendor of personal property as to the character of the sale made by him are not evidence against the vendee in an action of trespass brought by the vendee against the creditors of the vendor who had attached the property. In the case of Ferreday v. Selser, 4 How. Miss. 508, the declarations of the vendor tending to impeach the title of his vendee, were rejected as illegal evidence. In the case of Julian v. Reynolds, 8 Ala. 680, this court held that the declarations of the donor, made subsequent to the deed of gift, are not admissible to defeat it. We presume that this principle of
2. It also appeared in evidence that the execution under
-3. It further appears that after the téslimony was closed the plaintiff’s counsel assumed the position in his argument that the defendant had not shown that it was a judgment creditor, and consequently could not insist that the deed was fraudulent. The counsel for the defendant contended that it had been admitted that it was, and that the admission was made as evidence. This, as it appears, was denied by the counsel of the plaintiff. The court determined that the plaintiff’s counsel had made the admission in the presence of the court during the progress of the trial, and therefore the admission was evidence. To this the plaintiff excepted. This is certainly a novel question to be assigned as error; hut we can only say that when counsel differ in the court below as to the extent of parol admissions, or whether one was made, and the court decides that
For the error we have pointed out, let the judgment be reversed and the cause remanded.