Scott, Harper & Co. v. Dansby

12 Ala. 714 | Ala. | 1848

ORMOND, J.

The object of the bill is, to have the benefit of a mortgage alledged to have been made by E. & I. Dansby, on certain slaves, to secure the payment of a debt due by them to the plaintiffs in error. The instrument on its face purports to be made to secure a debt due from Elijah Dansby, to Scott, Harper & Co., and stipulates for his possession of the slaves mentioned in the mortgage, subject to the lien then created. It is signed with the firm name of E. & I. Dansby, and it is alledged in the bill, that this was done by Elijah Dansby, with the approbation of I. Dansby, or that he afterwards assented to it. There is no proof of this allegation of the bill, and in our judgment it cannot be inferred from the mere fact that the partnership name is signed to this instrument, that it is an obligation entered into by thé partnership, when the body of the instrument shows it to be the act of Elijah Dansby, and to be given as a security for his individual debt.

Being the act of one partner professing to bind the firm, it was certainly necessary to establish, that the debt thus acknowledged was a debt due by the firm, and that the propenty conveyed was partnership property. The only testimony offered, is that of the subscribing witness, Lee, who states, that he was informed both by Scott, the mortgagee, and E. Dansby, the mortgagor, that the slaves mentioned in the mortgage, were sold by Scott, Harper & Co. to E. & I. Dans-by. The statement of Scott was clearly inadmissible to prove this fact against a creditor of the firm. As the mortgagee, taking the obligation of one of the firm, for the payment of a firm debt, he has a direct interest in establishing it. The admissions of E. Dansby are only admissible so far as they relate to, or qualify his possession of the slaves. The admission of one in possession of property, that the title is in another, is admissible, either as a part of the res gestae, or as a declaration against his interest; but it has never been supposed that it was competent for a party to prove by his own declarations, the nature of his own title, though he might admit that he had none, and the title was in another. This question was fully considered in McBride and wife v. Thompson, 8 Ala. R. 650, where it is said the declaration of the person in possession is only proper to qualify or explain the possession, but that “ declarations as to the title, how, when, and from whom he acquired it, are inadmissible.” See also, this question further considered in Abney v. Kingsland, 10 Id. 360. It is quite obvious, the declaration of E. Dansby, here relied on, goes beyond the limit here assigned to this species of evidence. It does not merely relate to, and qualify the possession of the slaves, but it goes to his own title, and the manner of its acquisition.

The declaration of E. Dansby would not be competent testimony to prove that he owed this debt to Scott, Harper & Co., as against a creditor whose debt then existed, but was clearly incompetent to prove that it was a partnership debt, as he had a direct interest in fixing a joint liability upon his co-partner. It may also be doubted whether any portion of this admission is competent testimony against his co-defendants, the BurwelPs, as it is very clear it would not have been, jf repeated in an answer to the bill.

There is then, no competent proof in the record, that the debt secured by this instrument was due from the firm of E. & I. Dansby, or that the slaves mortgaged were partnership property.

But it is contended, that the chancellor should at least have decreed the sale of the interest of E. Dansby in the slaves, as there can be no doubt that he executed the mortgage, and the slaves were either his own individual property, or the property of the firm. The complainants must recover according to the allegations, and proof. The allegations of the bill are, that the mortgage was executed in the partnership name, to secure a partnership debt, conveying for that purpose the partnership effects. There is not, as we have seen, any competent proof of these allegations of the bill, and if there was proof that these slaves were the individual property of E» Dansby, and that the debt to secure which the mortgage was made, was his individual debt, no relief could be had upon this bill as it now stands.

The decree of the chancellor dismissing the bill must be affirmed.