Wilson v. Campbell

33 Ala. 249 | Ala. | 1858

BICE, C. J.

—The execution in favor of Joseph B. Skinner against Henry A. Skinner was offered by the defendant in this action, in connection with other evidence, to show title in himself to the land in controversy. It wras not void on its face. Conceding that its weight and effect would have been destroyed by proof of the fact, that the plaintiff therein (the said Joseph B. Skinner) died before it issued ; yet, as that fact was not admitted, but was contested, its determination, in this action, belonged not to the court, but to the jury. As the execution was, prima facie, valid and admissible, and its invalidity depended upon a question of fact, which the jury alone, in this case, were competent to determine, the court properly admitted it in evidence; that being- the only course which would secure to the defendant the benefit to which he was entitled from the execution, in the event the jury determined the aforesaid question of fact in his favor.—Driver v. Spence, 1 Ala. 540.

[2.] The record of the motion made by Jones Fuller, assignee of the Branch Bank at Mobile, and of the action of the court thereon, was offered as evidence against the defendant in the present action, of the fact that Joseph B. Skinner died, before the issue of the aforementioned execution. It is certain that the plaintiff in this action was neither a party nor privy to that motion ; and that if the decision upon that motion had gone the other way, it could not have been used by the present defendant against him, as evidence of the fact of the death of the said Joseph B. Skinner before the execution issued. It is a rule, that a record is not evidence of the facts recited, except between the parties to it, or privies; nor in favor of one who was neither party nor privy, and against whom it could not have been evidence of the facts recited.—Blann v. Chambliss, 9 Porter, 412; Plant & Co. v. Harris, at the last term; Atwood v. Wright, 29 Ala. R. 346, and authorities there cited.

[3.] The variance between the judgments and executions under which the sheriff sbld the land, and the recitals of those judgments and executions in his deed, did not render his deed inadmissible.—Driver v. Spence, supra.

[4.] There was no error in rejecting the instrument offered as the deposition of H. A. Skinner, under the notice and agreement that the motion to that effect might be heard at any time during- the trial. To entitle a party to the introduction of a deposition at law, when its admissibility is properly objected to, it must appear that the requisitions of the statute in relation to the taking of depositions have been substantially complied with. That does not appear in this instance, when the testimony oithe commissioner is noticed.—Code, § 2322; Ulmer v. Austill, 9 Porter, 157; Henderson v. Givens, 16 Ala. R. 261.

Judgment affirmed.