Rowland & Co. v. Plummer, 50 Ala. 182

PETERS, C. J.

No objection was made to the form of the issue, or the pleadings, in the court below. On the trial of such an issue, the plaintiff in attachment is the actor,' and assumes to show that the assignment of the note is invalid. Grady’s Adm’r v. Hammond, 21 Ala. 427 ; Goodwin v. Brooks, 6 Ala. 836. It would seem that, if the truth of the answer is not denied, the assignment, or transfer of the note, is admitted. 33 Ala. 454. This puts the assignee, or transferee, in the attitude of a party in possession ; and this possession is assailed by the plaintiffs in the attachment. Then, the assailing parties should show that they have a better title than the claimant, who is the party in possession of the note ; because possession of property is evidence of title against all the world, save the real owner. 1 Greenl. Ev. § 34 ; 3 Phil. Ev. (C. &H. Notes), pp. 457, 458, and cases there cited. In this case, upon the pleadings shown in the record, Plummer comes into court in possession of the note in dispute, and claims to hold it as trustee of Mrs. Annie E. Johnson. Before the plaintiffs can disturb this possession, they must show that this title is insufficient. As was said by Ormond, J., in the case above cited (6 Ala. 838), “ The design of the law was to enable the plaintiff in attachment to contest the validity of the alleged transfer, or assignment.” By taking issue upon the facts thus set up by the claimant, the plaintiffs admit the sufficiency and legality of the title alleged, but deny the facts which support it. It would seem, therefore, that if these facts are proved to be true on the trial, the verdict must necessarily be for the claimant, and the garnishment must be discharged.

2. If the husband was indebted to the wife, for the use of the moneys of her separate estate which were under his control, he was bound to pay her what he so owed. Ryan v. Bibb, 46 Ala. 323; Barclay v. Plant, at the present term. This he could do, if he chose, without suit; and if he could not pay in money, he might take such other steps to secure the payment as could be taken with any other person. Marriage, in this State, does not degrade a woman, as a creditor, below the dignity and rights of any other creditor. What any other creditor may do, to enforce payment of his debts, or to secure their payment or composition, she may do as to her separate estate, under the limitations of the laws enacted for her protection. Becton v. Selleck, at the January term, 1872; Barclay v. Plant, supra. Placing the note, then, in the hands of Plummer, for the use of Mrs. Johnson, was not an act forbidden by law.

3. Plummer was a mere bailee, to hold in trust for Mrs. Johnson. His solvency or insolvency could not have affected the legality of the transfer, nor her rights under it; neither could it have affected his duties as her trustee. He was the father of Mrs. Johnson, and therefore a fit person to become her trustee. There was no error in rejecting the attempt to prove his insolvency as a badge of fraud.

4. The objections to the competency of Johnson, the defendant in attachment, and of Foster, the attorney of Johnson and his wife, rest upon similar, if not identical grounds. The pith of these objections seems to be this : that to admit the testimony of witnesses so situated is immoral, and against the public policy. This would be a competent objection, if it were true. This was the objection allowed at common law against a party testifying in his own case, or in a case in which he might be interested in the judgment. It may now be gravely doubted whether this rule of the common law applies in any civil suit since the adoption of the Revised Code. The old rule of exclusion on account of interest, and connection with the case as a party, is now abolished, except in a single instance, which is not this case. Rev. Code, § 2704. All parties to the suit may now be compelled to testify in favor of the opposite party, when such party may choose to require it. Rev. Cede, §§ 2731 et seq. The oath of the witness demands an exhibition of the whole truth, so far as the party testifying knows it. Rev. Code, § 2703; 1 Greenl. Ev. § 828. This would compel the witness to disclose all that passed between him and his attorney, so far as it is pertinent to the issue. The party to the suit being thus bound to tell the whole truth of the matter, and what he had said about it to others, if demanded, as a means of testing his own veracity, there would seem to be little reason in protecting the attorney from a like disclosure. The object of the law is to elicit the whole truth, and this object must govern its policy. The law is the command of the sovereign power, and it speaks the public policy of the State. The law makes all parties to the suit competent, except in certain cases (of which this is not one). The husband is a competent witness for the wife, and the wife is a competent witness for the husband, in such a case as this. Robinson v. Robinson, 44 Ala. 227; Rev. Code, § 2704.

6. As to the attorney, his privilege is personal, and the client may waive it. 1 Phil. Ev. (Cowen’s ed. 1849) p. 163 ; 3 lb., Notes, pp. 182 et seq. It seems, also, that the disclosures which are forbidden to be made, are such as would be prejudicial to the client. He could not complain of that which did him no injury. 3 Phil. Ev. 162. Foster, then, was not incompetent, and he was properly admitted.

6. The testimony shows that the proper stamp was appended to the indorsement on the note, before it was offered in evidence. It could not, then, have been used with intent to defraud the government of the United States. Such an instrument is competent as evidence in a state court. Foster v. Holly, at the last term; also, Dailey v. Coker, 33 Texas, 815; S. C. 7 Amer. Rep. 279; Rheinstrom v. Cone, 26 Wis. 163; S. C. 7 Amer. Rep. 48, and cases cited in note. There is nothing in the fourth assignment of error.

7. The sixth assignment assails the accuracy of charges given by the court on the trial below, which are numbered 1, 2, and 3. The obligation of Tweedy and Ashford on the note in controversy was to pay to the legal owner the amount due thereon. The indorsement passed the title out of W. R. Johnson, and vested it in his indorsee. Rev. Code, §§ 1838, 2523. After such indorsement, it ceased to be the property of the indorser, and could not be seized on attachment as his property. Only his property could be attached for his debt. Rev. Code, §§ 2943, 2944. The indorsement, in this case, was older than the levy of the attachment by service of the garnishment on Tweedy and Ashford. In such event, the indorsement must prevail over the garnishment. This is the substance of charge number 1, of the learned judge on the trial below. It was correct.

8. Charge number 2 is not objected to as a whole. The portion objected to as set out in the bill of exceptions is thus stated: “ And plaintiffs excepted to the part of the said charge about ‘ the jury being bound to believe the evidence unless impeached or discredited.’ ” The oath of the juror is, that the verdict must be rendered u according to the evidence.” Rev. Code, § 4092. This means all the evidence that has been delivered to them on the trial. They are not at liberty to disregard any portion of it. If unimpeaehed or discredited, it all rests on the same basis ; but, in this view of the evidence, any conflict is an impeachment. And then the jury must judge what credit must be given to the conflicting evidence. If there is no conflict, then the evidence is to be taken to be true, and the court may charge the jury to find a verdict in its favor, as in case of a demurrer to the evidence. Hollingsworth v. Martin, 23 Ala. 591; Walker v. Walker, 41 Ala. 353; Costley v. Tarver, 38 Ala. 107; Barker v. Bell, 37 Ala. 354; Freeman v. Scurlock, 27 Ala. 407. This could not be the casé, unless the evidence, when uncontradicted or unimpeached, is to be taken as true. In this view of our decisions, I think the charge of the court was without error.

In the case of Goodwin v. Brooks (6 Ala. 836), already above cited, this court said : “ Here, it appears, the assignee appeared in obedience to the summons ; and the plaintiff in attachment making no allegation whatever against him, the court discharged him.” “ The plaintiff in the attachment is the actor in the proceeding, and if he does not prefer his allegations against the assignee, he will be entitled to be discharged for the omission of the plaintiff to prosecute the inquiry.” In this case, the discharge of the assignee was held to be correct. 6 Ala. 838. In like manner, if the plaintiffs in attachment, in the case at bar, had offered no evidence in support and prosecution of their claim, the assignee, Plummer, should have had judgment for his costs ; and if such evidence should be offered, it should be sufficient to sustain the claim of the attaching creditors, and put the contestant on his defence. This seems to have been the construction put upon the law regulating this proceeding in the court below, in the charge complained of. This charge was correct. This disposes of the sixth specification of the errors assigned.

9. The seventh specification of the assignment of errors states the refusal of the court below to give the charges asked by the plaintiffs, which include several questions that are by no means identical. These charges, marked 4 and 5, assert the illegality of a loan of the wife’s money to the husband. If these charges had been given, they would have had the effect to exclude the evidence of Mrs. Johnson and her husband from the jury. Their testimony, which, in this respect, is wholly uncontradicted, very clearly proves the fact against which the objection is aimed. The Code declares, that the “ husband and wife cannot contract with each other for the sale of any property.” Rev. Code, § 2374. It was settled in Goree v. Walthall (44 Ala. 161), that this prohibition did not forbid the husband to make a gift to the wife during coverture. The husband’s power to dispose of his property as he pleases is absolute, when he does not do so with intent to defraud his creditors. Crawford v. Kirksey, at June term, 1872; Hawkins v. Bailey, at the same term; Atwood v. Beck, 21 Ala. 590, 608; Sexton v. Wheaton & wife, 8 Wheat. 229; Hinde's Lessee v. Longworth, 11 Wheat. 199. That the wife should be excluded from the benefit of this great right is hardly to be supposed, from anything found in the law for her protection, except in the single instance above specified. Outside of this single prohibition, she may acquire the-ownership of property “by descent, gift, or otherwise,” and hold it and enjoy it as her separate estate, not subject to the debts of her husband. Rev. Code, §§ 2371, 2388. But the property thus acquired by the wife “ is subject to all the rules, regulations, and limitations contained ” in the Code upon the “ separate estate of wife.” Rev. Code, § 2382. These “ rules, regulations, and limitations ” do not forbid her to loan her moneys to any person, whom she and her husband may select. As her estate is liable for the “ support of the household,” to the extent, and in the manner prescribed by the Code, it would be clearly unjust to her not to permit her to loan her moneys for the purpose of enabling her to do this. Rev. Code, § 2373; Scott v. Grriggs, at the January term, 1873. The property of the wife vests in the husband, as her trustee ; he may receive it, and he has the right to manage and control it, and use the rents, income, and profits of the same, without accounting to the wife, except for the corpus of her estate. Rev. Code, §§ 2372, 2375. Then, such a loan of the wife’s funds to the husband, or a use of such funds by him for his own purposes, would not be void, or illegal, and he would be bound to account for the same, except, perhaps, for the interest; which could not go to the attaching creditors, as this would not be liable for the husband’s debts. Rev. Code, § 2372 ; Ryan v. Bibb, 46 Ala. 323; Barclay v. Plant, at the present term ; Saunders v. Garrett, 33 Ala. 454. There was no error, then, in refusing charges marked 4 and 5, in the transcript.

The charge marked 6 presents a different question. It asserts the proposition, that if Tweedy and Ashford' were served with the summons in garnishment before they were notified of Plummer’s claim, this would subject the note to the lien of the attachment in this case. The court refused this charge, and I think, properly. After the transfer of the note to Plummer, as the trustee of Mrs. Johnson, the debt secured by it ceased to belong to the defendant in the attachment, and it could not be subjected to the payment of his debts. The levy of the attachment by service of tbe garnishment creates the lien. If this was subsequent to the transfer, it could not prevail over it, if the garnishees had notice of the transfer before they answered. Here, this was the case. Rev. Code, § 2955 ; Brooks v. Hildreth Moseley, 22 Ala. 469. There was no error, then, in the refusal of this charge.

10. There Was no error in the refusal of the charge marked 7. The indorsement of a promissory note by the owner and holder passes the title to the indorsee. Such an indorsement need not be recorded to protect it against the creditors of the indorser. Rev. Code, § 1838.

The indorsement was sufficiently stamped to give it validity. Foster v. Holly, supra. The charge marked 8 was, therefore, properly refused.

The objection to the 10th charge has already been considered. If Jobhson used the money of his wife’s separate estate, he was certainly bound to refund it, except the interest, as has already been shown. Ryan v. Bibb, 46 Ala. 323; Barclay v. Plant, and cases supra.

The charge marked 9 is in these words; “ The wife must join in a fraudulent action, before her rights can be defeated by fraud.” As a general proposition, expressed in the terms here used, this is correct. This point is, however, not elaborated or noticed in the learned brief of the appellants’ counsel. When this is the case, it is presumed that the point is not insisted on, but abandoned. 1 Brickell’s Dig. p. 102, § 285. The same may be said of the court’s ruling, which was objected to, on recalling the witness Johnson, to prove whether Mrs. Johnson owned any property shortly after the 6th day of June, 1870. This is not included among the errors assigned. And it is the practice of this court not to notice any others. 1 Briekell’s Dig. p. 102, §§ 279, 281.

A careful examination of this important and interesting case, in which I have been very much aided by the learned and suggestive briefs of the counsel for the parties in this court, leads me to the conclusion that the judgment of the court below ought to be affirmed.

The judgment of the court below is, therefore, affirmed.

Brickell, J., having been of counsel in this cause in the court below, did not sit.

Case Details

Case Name: Rowland & Co. v. Plummer

Court Name: Supreme Court of Alabama

Date Published: Jan 15, 1874

Citation: 50 Ala. 182

Court Abbreviation: Ala.