Thomas v. De Graffenreid

| Ala. | Jun 15, 1855

G-OLDTHWAITE, J.

There was no error in sustaining the objection made to the answer of the witness Todd to the sixth cross-interrogatory, for the reason, that it did not answer as to the fact inquired of, but simply gave the opinion of the witness in relation to it. So, also, as to the objection made to the answer of the same witness to the ninth cross-interrogatory. The question relates solely to the possession ; and the reply is, that the property was known to belong to the person through whom the defendant below claimed — thus assuming the real question at issue, and announcing the conclusion of herself and others as to that fact. That portion of the answer was neither a response to the question, nor was it legitimate evidence, for the reason, that it was here a purely legal conclusion. It is true that part of the answer, which stated that the defendant in execution remained in charge of the plantation, may have been proper, under the decision of this court when the case was last here (IT Ala. 602); but, as the part referred to could only have operated in favor of the objecting party, the other side could not complain.

In relation to the statute of South Carolina, of the 20th December, 1832, we are unable to perceive its relevancy. The simple question, under the pleadings, was, whether the slaves levied on were subject to the execution; and the plaintiff had offered testimony, conducing to show that the defendant in execution was the owner of the property, by evidence of Ms possession of and control over it. The claimant attempted to establish her right, by proving a gift of the property to her in 1812 ; and the plaintiff, to rebut this evidence, offered a law passed twenty years afterwards, declaring, in effect, all parol gifts invalid against subsequent creditors and purchasers, unless the donee lived separate and apart from the donor, and actual possession at the time of the gift was delivered and continued in the possession of the donee. This law certainly could not hare any effect on gifts made before its passage, and there is not any evidence of one made after the period of its enactment. The gift relied on, if made at all, was made long before that timo, and could not, if valid, be affected in any way by the act subsequently passed.

The claimant may not have been injured by this testimony ; but we are not fully satisfied of this. As juries are constituted, it is very difficult to say what effect this or that evidence is to have upon their minds. If irrelevant testimony can do no other harm, it may raise a cloud, and observe the real points; especially when it goes to them with the sanction of the court as to its materiality. The safe rule, and the one. on which we have- acted, is, that injury is always to be presumed from error, unless the contrary clearly appears; and where irrelevant evidence has been admitted, the absence of injury must be very plain to allow us to sanction the error. Frierson v. Frierson, 22 Ala. 549" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/hanson-v-jacks-6505037?utm_source=webapp" opinion_id="6505037">22 Ala. 549.

In relation to that part of the answer of the witness Crosby to the second direct interrogatory, which states that the witness never knew any one to purchase necessaries for the family of Athanasius Thomas, the defendant in execution, — it may be evidence of a very weak character, but it is not irrelevant. The family, as we understand it, included the slaves which were the subject of contest; and the improbability that a person who did not own them should for years supply them with necessaries, is enough to sustain the admissibility of this testimony. The part of the answer of the same witness to the third direct and second cross-interrogatory, which was objected to, was decided, when the case was last here, against the appellant.

The offer to show that the defendant in execution did not obtain credit in South Carolina upon the faith of the slaves he had in possession, was irrelevant, and the objection to it was properly sustained. The issue here was, whether the title was in the claimant, and the evidence offered was incompetent to sustain it.

In relation to the objections which were made to the depositions of the witnesses Allen and Boulware, it is only necessary to observe, that if it were conceded that the deposition of tbe last witness would have been inadmissible if objected to separately, yet, as tbe objection was general, and went to both depositions, it was properly overruled, as there is nothing which would warrant the exclusion of the deposition of Allen. This point has been so often determined by this court, as to render it unnecessary to cite authorities.

Neither was there any error in overruling the question propounded on the part of the appellant to the witness Shelton. The reply made by a third person to a proposition to buy one of the slaves, the ownership of which was in question, would not be evidence, unless it was shown that the person by whom it was made was in possession of the slave at the time, and unless the reply tended to explain that fact. If the possession had been proved, the question as asked was too broad, as it. would admit of any answer, whether relating to the possession or not. It should have confined the reply sought for to statements relating to the possession.

As to the facts which the claimant offered to prove by this witness, we can see no objection. They were simply declarations, made by a party in possession, that the property belonged to the claimant, and tended to show that he held in subordination to her, — impliedly, at least, referring his possession to her ownership ; and under our decisions, evidence of this character was admissible. — Beall v. Ledlow, 14 Ala. 523" court="Ala." date_filed="1848-06-15" href="https://app.midpage.ai/document/beall-v-ledlow-6503756?utm_source=webapp" opinion_id="6503756">14 Ala. 523; Nelson v. Iverson, 17 Ala. 216" court="Ala." date_filed="1850-01-15" href="https://app.midpage.ai/document/nelson-v-iverson-6504173?utm_source=webapp" opinion_id="6504173">17 Ala. 216. Statements like these, where, from the situation of the party, there is an obvious motive for representing the ownership to bo in another, may be entitled to but little (if any) weight; but still they are admissible for what they are worth. Whether the'offer to prove the facts referred to was objectionable, on the ground that it proposed to do so by propounding leading questions, it is unnecessary to decide, as it is not probable the same question will arise on another trial.

There was no error in allowing the proof of the value of the slaves at the time of the trial (Borland v. Mayo, 8 Ala. 103" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/blackman-v-branch-bank-at-mobile-6502566?utm_source=webapp" opinion_id="6502566">8 Ala. 103); nor in allowing the declarations of Athanasius Thomas, while in the possession of the plantation, that he held it in his own right; nor in the objections which were made to portions of the answers of the witnesses Crosby and Allen, which were discussed and determined when the case was last here.

The judgment must be reversed, and the cause remanded.