MIMS vs. STURDEVANT AND WIFE, 23 Ala. 664

GIBBONS, J. -Tho sole question presented for our determination is, whether the court below erred in the admission of the testimony to which exception was taken, and tho ruling of the court upon which is hero assigned for error. When this ease was here at a former term, the testimony then excepted to was as follows : u Thomas II.

Brown, being offered as a witness, testified that, whilst the testator was in the possession of the slave, he stated to the witness that he had sent eight hundred dollars by Stanford Mims to purchase the slave, and that he had bought him for six hundred and five dollars.” The admission of this testimony was on that occasion held by this court to be erroneous. C. J.

Bargan, in commenting upon the evidence, says : “ The declarations or admissions of one in possession of property explanatory of his possession, as that ho held in his own right, or as a tenant or a trustee-of another, are admissible evidence, because it explains the character of is possession; but his declarations in regard to the contract by which he came into possession cannot be received as evidence in Iris favor. This rulo has often been repeated by this court, and must be considered, as the settled law.—McBride v. Thompson, 8 Ala. 650; Cox v. Easley, 11 Ala. 362; Thompson v. Mawhinney & Smith, 17 Ala. 362.

Applying this test to tiro evidence, wo think it was inadmissible. The declarations of the testator did not refer to his po? session, but were merely descriptive of the contract by which ho obtained possession; consequently, they should have been rejected. The language employed by the late Chief Justice in reference to the testimony then under consideration, in our opinion, applies with equal force to the testimony drawn in qu stion by the present bill of exceptions.

The testimony offered and admitted by the court below was, that on a certain occasion witness was in the presence of Fritton Mims and wife; that they then counted out some money, and stated that it was for the purchase of the negro boy John. The mere act of counting the money -would not, in our opinion, have any relevancy or per. tinency to the issue, without the accompanying declarations that it was for the purchase of the negro boy in question.

These declarations could in no sense be considered explanatory of any possession, as possession merely, then had or in contemplation by the older Mims, but must rather be considered as desci’iptivo of the title by which he intended to acquire and hold the boy.— Such declarations fall directly within the influence of the eases above cited, and are entirely covered by the opinion of the late Chief Justice in this case when it was on a former occasion before this court.

But it is insisted, that, although the testimony is inadmissible by the strict rules of evidence, yet its admission could work nu injury to the plaintiff in error, as the proof was abundant in favor of the decision of the court upon the facts without this evidence, it is true, the bill of exceptions sets out much other evidence; but it is not for this court to say that the proof was abundant with - out the evidence in question, and that therefore no injury could accrue from the admission of the testimony.

The rule of this court is, that it will presume injury from error, unless the record, itself rebuts the presumption.—Ex parte Keenan, 21 Ala. 558; Frierson v. Frierson, ib. 549; Dave v. The State, 22 Ala. 23. This the record, in our opinion, does not do. We may have our own private opinion as to which side has the advantage in tho -weight of testimony offered, but we cannot pretend to say that the court below was not materially influenced in its decision by the evidence in question.

If the defendants in error would avail themselves of the principle which they invoke, they should show by the bill of exceptions, or in some other manner by tho record, that the court below was in no respect influenced by the testimony admitted, or that no injury in fact resulted to t lie plaintiff in error from the ruling of the ’court. This the record no where shows. Again ; it is insisted that, inasmuch as the court below decided the issue without a jury, its decision is not revisable by this court; and in support of this position is cited the case of Barnes v.

Mayor and Aldermen of Mobile, 19 Ala. 707, and Botts v. McCoy & Johnson, 20 Ala. 579. The principle here relied-upon in argument is admitted to be correct, but, as we conceive, has no application to the question under consideration. We are not called upon to revise the.deision of the court below upon the facts in evidence, nor is the correctness of the judgment of that court here drawn in question upon tho proofs before it. But the question here is one purely of the competency of the evidence offered. The court below decided it to be competent, and as such admitted it.

In this we think the court erred, and for this error the judgment of the court is reversed, and the cause remanded.