ODEN v. STUBBLEFIELD, 4 Ala. 40

COLLIER, C. J. — The first objection fo thé évidéric'é is wéll taken. It appears that the plaintiff was allowed to prove that the deed from himself to his son, had been spoken-of in- defendant’s family, and before his wife, as a circumstance- from whieh the-jury might infer that the defendant had “ the same' chance of information.” The testimony was entirely irrelevant and well calculated to mislead. If the defendant had-been- informed, previous to his purchase of Writ. T.

Stubble-field:, of the reservation in the- deed of the plaintiff, if could have had no influence- upon his title, if the possession of his vendor, coupled with his own, had continued for three years'. Such was thé decision of this Court when this cause was here twelve'' months ágó. [2 Ala. Rép. 684. See also Myers v.

Peek’s administrator, ib. 648.] But if thé evidence had been pertinent, it should not have been received; for though thé conjugal-relation supposes that the wife is unreserved in her' corimutnica-tions-tó the husband,yet it by- no means follo ws that shé infonris h-imof every thing.'she-may hear; especially if it-he not likely to interest or affect him- in some way.

Now it does ridt: appear- that the défe'ndarií had or was about- to acquire an interest-iti the-slaves, at the time' his wife heard the deed frdrn the' plaintiff spoken of, so- that it cannot be reasonably intended that she repeated' wha-t she had heard. Nor- can it- be admit-. ted, that because the wife heard a fact related, her husband, whose means of information were equally as good, was also advised’of it. The second objection to the admission of evidence relates to the declarations of Wm. T. Stubblefield, which it is insisted should have been rejected.

It appears from the bill of exceptions, that the negro woman, some time in 1S38, ran away from W. T. Stubblefield, and went to the plaintiff’s house, where she remained for eight or ten days; the former then went for her, when, as he stated, he had some difficulty in getting her away from the family, and to satisfy them, he had promised to return her at the end of the year. It is not expressly stated, but the fair inference is, that this declaration was made by Wm, T. Stubblefield during'the continuance of his possession. Upon this assumption the evidence was clearly admissible.

In respect to real estate, it is said the general doctrine, that the declarations of a tenant in possession of land are admissible as a part of the res gestae has seldom been denied. [2 Phil. Ev. C. & H. ed. 600 ; Bliss v. Winston, 1 Ala. Rep. 344.] And the same rule prevails in its utmost extent as to personal property. [2 Phil. Ev. 601.] Thus on an appeal between two towns, contesting the settlement of a negro, it seems that the declaration of a person, made in respect to his title to the negro while in his possession as a slave, are receivable in evidence. [Overseers of Germantown v.

Overseers of Livingston, 2 Caine’s Rep. 106; see also Walkup v. Pratt, 5 Har. and John. 51.] And, in Willies v. Farley, [3 C. and Payne’s Rep. 395,] it was held what one in possession of goods said as to whose property they were,is evidence. To these citations many others quite as pertinent, might be ad- • ded, but the question is too firmly settled to make its further consideration at all necessary. In refusing to give the charge prayed by the defendant, the Court impliedly affirm, that if William T.

Stubblefield first acquired the possession of the slaves as the agent of his father, a continuous possession for three years, demand made and pursued as required by the second

section of the statute of frauds, will not perfect the title of a bona fide purchaser from him. It is certainly true that one who acquires and holds personal property as the agent of another,. cannot transmit to a third person, having notice of his agency, a title to that property, in violation of the trust.

But one having possession as agent, may as a donee, with a reservation to the donor, or as a loanee, acquire a title, in favor of creditors and purchasers, if the deed or writing is not recorded, and he remains in possession for three years without demand made and pursued by due course of law, and this although the possession was first acquired as an agent. The Court instructed, the jury that if the plaintiff received the two dollars agreed to be given by Wm, T. Stubblefield on account of the hire of the negroes, then the possession of Rag-land, in 1S37, was the possession of plaintiff. The evidence was, that Wm.

T. Stubblefield hired the negroes to Ragland in the latter part of the year 1836, at ten dollars per month ; the plaintiff was dissatisfied because they could have been hired for more, and to . quiet his complaints, Wm. T. Stubblefield agreed-to pay in addition two dollars for each month. Rag-land has never paid the plaintiff any part of the hire, not conceiving it to be due him, though he has occasionally claimed it; nor does it appear that the plaintiff has received any part of the hire from his son. This charge cannot be sustained. As it respects creditors and purchasers, the actual payment of the hire by Wm.

T. Stubblefield, could not have interrupted the continuity of his possession, and in their favor if it continued for three years witnout demand made and pursued by due course of law, it would divest the reservation which the plaintiff had made in his own favor. The cases cited from 2 Ala. Rep. are full and direct to the point. No question of law arises upon the evidence in relation to the possession of the plaintiff, of the woman during the period of her elopement in 1838; or whether it was a legal interruption of Wm. T. Stubblefield’s possession.

As this is a question of law, by no means difficult of solution, when the facts are ascertained, we leave it to be determined by the Circuit Court. We have only to add, that the judgment is reversed and the cause remanded.