Steiner v. Tranum

• Decision Date: 25 May 1893
• Citation: 13 So. 365,98 Ala. 315
• Parties: STEINER ET AL. v. TRANUM.
• Court: Alabama Supreme Court

13 So. 365

98 Ala. 315

STEINER ET AL. v. TRANUM.

Supreme Court of Alabama

May 25, 1893

Appeal from circuit court, Butler county; John P. Hubbard, Judge.

Trover by G. L. Tranum against Steiner Bros. & Co. for the conversion of a horse. Judgment for plaintiff, and defendants appeal. Affirmed.

The defendants requested the court to give the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "If you find from the evidence that after the law day of the Jordan mortgage Russell and wife traded the horse to Tranum, the title so derived by Tranum would not enable him to recover of the defendants in this action." (2) "That if Russell traded two mules, and gave $40 for two horses, and one of which horses was the one in controversy, and you further find that one of the mules so traded was acquired by Russell from Dr. Jones for corn raised by Russell in the year 1889, then Mr. and Mrs Russell would be joint owners of the horse in controversy, and the plaintiff cannot recover." (3) "That if you find from the evidence that Mr. Russell obtained one of the mules from the stock derived from Dr Jones, for which he paid corn raised by him, (Russell,) and the other mule was derived from stock traded or derived from a yoke of oxen of Mrs. Russell; and you further find that Mr Russell paid $40 in money and the two mules for the two horses,-then Mr. and Mrs. Russell would be the joint owners of the two horses, and the plaintiff cannot recover." (4) "If you find that the property of Mr. and Mrs Russell paid for the cream horse, your verdict should be for the defendants."

J. C Richardson, for appellants.

M. W. Rushton, for appellee.

HEAD J.

Trover by appellee, Tranum, against appellants, Steiner Bros. & Co., for the conversion of a horse. Appellants, Steiner Bros. & Co., took the horse from the possession of appellee, Tranum, under a mortgage executed to them by M. A. Russell. Tranum claimed to have purchased and acquired possession from Mrs. M. A. Russell, the wife of said M. A. Russell. His purchase was subsequent to the execution and registration of Steiner Bros. & Co.'s mortgage. The sole controversy was whether the horse, when the mortgage was executed, was the property of M. A. Russell or of his wife. We will dispose of the assignments of error as they are presented and insisted upon in the brief of appellant's counsel.

1. The plaintiff testified that about the middle of January, 1892, he traded a mule to M. A. Russell for the horse in controversy, and was to give $25 to boot; that five or six days after the trade he executed his note to Mrs. Russell for $25. The defendants' objections to secondary evidence of this note, if well taken, were obviated by the subsequent introduction of the note itself.

2. The defendants objected to the introduction of the note, because its execution was not proved by the subscribing witness, that proof being made by the testimony of Mrs. Russell and the plaintiff. The plaintiff's alleged purchase and acquisition of title from Mrs. Russell rested in parol. The note he executed to her was not a muniment of his title, but was a mere circumstance of the purchase, showing, in connection with the other evidence, the consideration of the purchase, and how it was evidenced or paid. The note was incidental merely to the main issue, and it was not necessary to call the subscribing witness to prove its execution.

3. Ownership of personal property is a fact to which a witness may testify. On cross-examination such witness can be required to state the particular facts on which the claim of ownership rests. Daffron v. Crump, 69 Ala. 77; Nelson v. Iverson, 24 Ala. 9. There was no error, therefore, in permitting Mr. and Mrs. Russell to testify to the latter's ownership of the horse in controversy, or of the property traded for the horse.

4. The horse sued for was acquired by an exchange of other stock effected by M. A. Russell, with one Scott. The plaintiff introduced evidence tending to show that the property so given in exchange belonged to Mrs. Russell. M. A. Russell was permitted to testify that his wife consented to the trade when he came home. Mrs. Russell was also asked, "When your husband brought the horse home from Montgomery that he got from Scott, did you ratify his trade?" The defendants objected to this question on the following grounds: (1) Because it is illegal; (2) because it is irrelevant; (3) because her ratification could not vest title in her; (4) because her ratification could not effect title; (5) because her ratification could not effect plaintiff's title. The court overruled these objections, and defendants excepted. The witness answered that she did ratify the trade. It will be observed that neither of these specific objections raises the point that the question called for the legal conclusion of the witness. The objection that it was illegal was general, and insufficient to apprise the court of the particular cause or ground of illegality. The court was, therefore, in ruling on the objections, justified in considering only those grounds specifically pointed out. The question then presented is whether the wife's subsequent consent to and ratification of her husband's unauthorized barter or exchange of her separate personal property for other property is effective to legalize the barter, and vest title in her to the property received in...