Shaw & Shaw v. Cleveland

• Decision Date: 16 May 1912
• Citation: 59 So. 534,5 Ala.App. 333
• Court: Alabama Court of Appeals
• Parties: SHAW & SHAW v. CLEVELAND.

59 So. 534

5 Ala.App. 333

SHAW & SHAW v. CLEVELAND.

Court of Appeals of Alabama

May 16, 1912

Rehearing Denied June 19, 1912.

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Detinue by Shaw & Shaw against Jackson S. Cleveland. From a judgment for defendant, plaintiff appeals. Affirmed.

While the witness R. J. Lawley was testifying, it appearing that he was a son of the Lawley who was alleged to have bought the engine from Thomas, and who was at the time of the testimony dead, the defendant propounded to him the following questions, to which the plaintiff interposed objections which were overruled; these questions constituting the following assignments of error: (13) "Were you present at the mill, in April, 1909, when there was a conversation between Mr. Lawley and Mr. Thomas, and did Marion Lawley buy that Taylor & Chandler engine from Thomas that day?" (14) "Do you, yourself, know anything about Mr. Thomas renting that engine from Mr. Lawley?" (33) Rottenberry a witness introduced by the defendant, and asked if, in the spring, in April or May, "there was a conversation between Mr. Lawley and Mr. Thomas and yourself, in reference to the engine." Motion being made to exclude the question and the answer. The other facts sufficiently appear in the opinion.

The written charge made the basis of the twenty-sixth assignment of error is as follows: "I charge you that under the terms of the mortgage given by Thomas to the Bibb County Banking & Trust Company, on August 10, 1909, the bank got a title to the engine in question on August 8, 1908."

The following charges were given at the request of the defendant "(1) I charge you, gentlemen of the jury, that if M. F Lawley bought the engine, the subject-matter of this suit prior to the execution of the mortgage to the Bibb County Banking & Trust Company, and that the heirs of said M. F Lawley sold same to the defendant, you must render a verdict for the defendant, J. S. Cleveland. (2) I charge you, gentlemen of the jury, that M. F. Lawley was under no legal duty to record evidence of his purchase of said engine." The evidence tended to show that, after Lawley's death, his heirs all being of age, the engine in question was sold by them, without administration, to the defendant in this case.

S. D. & C. D. Logan, of Centerville, for appellant.

Lavender & Thompson, of Centerville, for appellee.

DE GRAFFENRIED, J.

1. One J. H. Thomas, a sawmill man, had a sawmill at Active, in Bibb county, which he operated by means of an engine upon which he gave, in August, 1909, a mortgage to the Bibb County Banking & Trust Company to secure the payment of a certain note. When the note fell due, it was not paid, and the property described in the mortgage was sold under the power of sale contained in the mortgage, and the appellants purchased the engine at said sale.

Of course, as purchasers at said mortgage sale, the appellants acquired the same title to the engine which belonged to the Bibb County Banking & Trust Company, no more and no less.

When the Bibb County Banking & Trust Company took from Thomas the mortgage to which we have above referred, that company did not know that Thomas was in possession of the engine, except from what he told them. The evidence shows that the bank did not even know whether the engine, if in Thomas' possession, was in Bibb or Chilton county. The bank, in taking the mortgage, simply relied upon the statement of Thomas that he owned such an engine and was in the possession of it. The bank, therefore, when it took the mortgage, was not in such a position as to be able to claim that (as between it and R. J. Lawley, to whom some of the evidence tends to show Thomas sold the engine prior to the execution of the mortgage), the sale to Lawley was invalid because Thomas was left by Lawley in possession of the engine. It is our understanding that as between the vendor and the vendee a contract of sale, when complete in all its parts, is valid, although the vendor may be left in possession of the property. Such a sale may or may not be valid as to the creditors of the vendor existing at the time of the sale according to the circumstances of each particular case.

As to the existing creditors of the vendor, the retention of possession of the property by the vendor is a badge of fraud. Unexplained, such retention of possession is prima facie evidence of fraud as to such creditors; but if the retention of possession is, in such a case, consistent with good faith and the absolute disposition of the property, such sale is valid as to existing creditors. Millard's Adm'rs v. Hall, 24 Ala. 209.

In the present case it is not claimed that the sale to Lawley, if in fact made in the spring of 1909, was fraudulent as to the Bibb County Banking & Trust Company. That position was not assumed by counsel for appellants on the trial in the court below, and no such argument is advanced upon this appeal. There was an insistence that there was no such sale; that the defense thus sought to be interposed was an afterthought. But there was no insistence in the court below--and none is made here--that the sale, if made, was fraudulent and void as to appellants.

2. The evidence shows, without dispute, that Thomas was in possession of the engine during all of the year 1909. The rule is familiar that the declarations of a party in possession of either real or personal property tending to explain the character or extent of such possession are ordinarily admissible as part of the res gestæ of his possession. "The declarations of persons in possession of property, whether real or personal, serving to characterize or limit the nature of the possession, are admissible in evidence as a part of the res gestæ of the possession." 9 A. & E. Ency. Law, p. 12; Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442.

The declarations of Thomas, who was confessedly in possession of the engine, that he had sold the engine to Lawley, and that he was renting the engine from Lawley, made in the spring of 1909, before he executed the mortgage to the bank, were clearly admissible.

3. During the progress of the trial a witness, Jack Collins, was asked whether Lawley bought the engine from Thomas in the spring of 1909. The court, against the objection of appellants, permitted the witness to answer the question, and the question was answered by the witness in the affirmative. There was nothing in the question or the answer of the witness indicating that the question did not call for a collective fact within the knowledge of the witness, and the court properly admitted the testimony. Subsequent to the admission of the above testimony, the witness, on cross-examination, testified that he did not know of his own knowledge that Lawley had bought the engine from Thomas; that all that he knew about it was what Thomas and Lawley told him. Said the witness, " Mr. Thomas told me he sold the engine to Mr. Lawley; what I know is hearsay, just what they (said J. H. Thomas told me and what Mr. Lawley told me). Mr. Thomas told me and Mr. Lawley told me. Mr. Shaw [one of the appellants] was not present at any time when I was told by Thomas or Lawley that Thomas had sold the engine to Lawley." Thereupon, says the bill of exceptions, the appellants moved to exclude all of the above-quoted testimony "upon the ground that the same is immaterial irrelevant, and incompetent, and that neither one of the plaintiffs were present...