11 Ala. 880 (Ala. 1847), Frow v. Downman

Citation:11 Ala. 880
Opinion Judge:GOLDTHWAITE, J.
Court:Supreme Court of Alabama

Page 880

11 Ala. 880 (Ala. 1847)




Supreme Court of Alabama

January Term, 1847

Writ of Error to the Circuit Court of Dallas.


1. We think the circuit court was mistaken in considering the witness it excluded as within the terms or intention of the act of 1845, rendering the mortgagor, or defendant in execution incompetent in claim suits. The object of this statute was, to change the law as it then stood in two particulars--first, to permit the mortgagee to interpose a claim when the mortgaged estate was levied on at the suit of a creditor of the mortgagor, irrespective of the law day of the deed--and second, to prevent the mortgagor defendant in execution from giving testimony in all trials of the right of property, whether under that or the existing laws. [ Brumby v. Langdon, 10 Ala. R. 747; Acts of 1845, p. 136.] It evident that the witness is not the defendant in execution, because there is another person who fills that condition, and the only question is, whether he stands as a mortgagor within the meaning of the act. It is very possible a conveyance in trust for the benefit of creditors, where a condition is reserved that the deed shall be void upon the payment of the debts, would be considered as a mortgage within this act, but where the trust, as it is by the deed in this instance, is created absolutely, and without any condition whatever, the grantor is in no sense of the term a mortgagor. The estate of the trustees is dependent on no condition, and vests absolutely on the execution of the deed. Under it, they at any moment could require the possession, and act as owners to any extent compatible with the trusts. Although we thus come to the conclusion the witness is not within the terms or intention of the act referred to, the point of rejection cannot be finally disposed of without the further consideration, whether, independent of this, the witness was competent.

2. His true relation to the trustees in the deed, who are the claimants here, is that of a vendor, with a trust resulting to himself in the event the property conveyed should leave a surplus, after satisfying the trusts declared--in other words, after the payment of all creditors. Like all other vendors of personal estate, it is possible he might be liable on the implied warranty of title. Independent of these interests, which are capable of being released by the witness, and the trustees, there is...

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