2 Ala. 314 | Ala. | 1841
— The questions of law presented on the record are,
First: was the co-defendant of Frank the defendant in execution, properly excused from giving evidence, on the ground that he could not be compelled to swear against his interests.
Second: was the acknowledgment of the deed of trust, by the grantor, sufficient to authorise its registration.
Third: was the deed of trust inoperative, as to all creditors whose debts existed anterior to the execution of the deed of trust.
Fourth: Can the interest of the grantor in a deed of trust be sold under execution, he being in possession of the property.
' Fifth : What is the effect of a verdict on the trial of the right of property; does it condemn the property absolutely to the payment of the execution, or only such estate as the grantor has in the property?
These questions will be considered in the order here presented.
A witness cannot be called on to testify, when his testimony would expose him to a criminal charge, or to a penalty; and it may be doubtful whether he could be called on as a witness, when his testimony would subject him to a civil action, or charge him with a debt, though the better opinion seems to be, that he would be compelled to answer in such a case. To satisfy the scruples of some of the English Judges on this point, the 46th of George 3d was passed, which declars that a witness shall be compelled to answer in such a case. The disqualification, arising from interest in the event of the cause, is not an
The Court therefore erred in the charge given; but did not err in the refusal to charge that the date of the judgment was the time when the plaintiff in execution, became a creditor; whenever it became important to ascertain that fact, it would be referred to the creation of the debt, of which the judgment would be conclusive evidence.
4. In the case of Perkins & Elliott v. Mayfield, 5 Porter 182, the precise question here raised, was determined by this Court in which it was held, that a mere equity, unacompanied by the possession of the property, could not be sold by execution; but that the equity of the maker of a deed of trust, accompanied by possession, could be thus sold
We do not feel our ourselves authorised to depart from the decision, referred to, of Perkins & Elliott v. Mayfield, and that of McGregor & Darling v. Hale, and other cases which preceded it, and on which it was founded, although they lead to the consequences, we have stated; they have been too long acted on, and acquiesced in to be now disturbed.
These considerations would, in our opinion, authorise a Court of Chancery to interfere before the sale, for the purpose of ascertaining, and separating, the interests of the mortgagor and mortgagee, or of the maker of a deed of trust, and the cestui que trust. No injury could result to the plaintiff in execution, whom it would be the duty of the Court to require the party seeking its aid, to indemnify by adequate security.
5. The issue in this case was general, the plaintiff affirming and the claimant denying, that the property was liable to the execution. The effect of a finding in favor of the plaintiff, by the jury, was a matter with which they had no concern; their duty was discharged by passing on facts, and finding according to the truth of the case ; the result of their finding would be a matter of law, arising out of the verdict. If it could exert any influence over their finding, it would probably be an improper one, by inducing them to find the issue improperly; because the consequences might not be very injurious. The charge moved for therefore, was highly improper, and should have been refused. But the charge given was wrong; it was held by this
The judgment must therefore be reversed and the cause remanded for further proceedings.