Swindell v. Warden

• Decision Date: 31 August 1860
• Citation: 7 Jones 575,52 N.C. 575
• Court: North Carolina Supreme Court
• Parties: ELIZABETH SWINDELL v. ANDREW J. WARDEN AND JESSE F. REEVES.

7 Jones (NC) 575

52 N.C. 575

ELIZABETH SWINDELL

v.ANDREW J. WARDEN AND JESSE F. REEVES.

Supreme Court of North Carolina.

August Term, 1860.

*1 The possession of property is not a fact that entitles the party holding it, to give his own declarations in evidence, either to establish his title, or to contradict the witnesses of the other side.

The acts of one purporting to be an officer, are evidence of his authority, and such acts, as to third persons, are to be taken as valid, while the incumbent is thus acting.

THIS was an action of TRESPASS, tried before OSBORNE, J., at the last Spring Term of Ashe Superior Court.

The action was brought for taking with force from the plaintiff a quantity of whiskey and a sack of salt.

The defendants justified under a fi. fa. on a judgment, in favor of the defendant Warden, which was in the hands of the defendant Reeves, who acted on the occasion as an officer. The judgment, under which the parties professed to act, was against one Eli Swindell, and the property was alleged by the defendants to be his, and that the claim and possession of plaintiff was fraudulent, and designed to hinder and delay the creditors of the said Eli. There was evidence tending to show, that the latter had bought the whiskey and salt at Wytheville, in Virginia, and hired one Fields to haul it for him. Fields swore to the fraudulent character of the transaction, and among other things, stated that just before they arrived at the residence of the plaintiff, who was the mother of the said Eli, he said to the latter, that if the defendant Reeves knew he had purchased the salt he would take it for Warden's debt, and thereupon Eli made a transfer of the salt to him, Fields, and he afterwards transferred it to Mrs. Swindell, the plaintiff, without consideration.

Eli Swindell was examined and testified to the honesty and fairness of the plaintiff's ownership, and that he had no property or interest in the whiskey or salt taken by the defendants.

The plaintiff offered her own declarations in evidence, made while she was in possession of the property to establish her title, and in contradiction of the witnesses of the defendants. This was objected to and ruled out, whereupon plaintiff's counsel excepted.

The Court charged the jury that the property, being admitted to have been in possession of the plaintiff, she would be entitled to recover, unless, from the testimony of the witnesses of the defendants, they believed the whiskey and salt to have been the property of Eli Swindell. The Court further charged, that if they believed the testimony of the witness, Swindell, the plaintiff was entitled to recover. The Court asked the counsel if they wished further instruction on either side, who, both answered in the negative. Plaintiff again excepted.

Verdict and judgment for the defendants. Appeal by the plaintiff.

Lander and Avery, for the plaintiff .

Boyden, for the defendants .

MANLY, J.

*2 The first point raised upon the record of the trial in the Superior Court, is the admissibility of the plaintiff's declarations. It is stated the declarations were made while she was in possession of the property in question, and were offered to prove her title and to contradict the witnesses of the defendant. We agree with the Court below that they were not admissible for either of these purposes.

Declarations from any source, as a general rule, are not admissible. Declarations from a party stand on no better footing than those of an indifferent person, except when offered by an adversary. An exception to this general rule is, when an act of possession becomes material and proper to be proved, what the person says explanatory of his possession, as for instance, whether such possession be in his own right, or as the...