HITT AND WADE vs. RUSH et al., 22 Ala. 563

CHILTON, C. J.' The question before us is, whether the slave Eve was given by Jobn Pearson to James Rush, anterior to the execution of the deed by Pearson to Wade; and this depends upon the evidence, to which we will briefly allude. We have the testimony of one witness on each side. Grace H.

O’Neal was examined on the part of the complainants, and testifies, that, in 1831, her father came from his residence in Fairfield District, in South Carolina, to Columbia, where she and her sister Martha Ann Eush resided, bringing with him the slaves mentioned in the deed to Wade, and there executed the deed, to which she is a subscribing witness ; that Eush was then insolvent, and owned nothing in his own name; that his wife was a free dealer, and they were engaged in keeping tavern in Columbia, which was carried on in the name of the wife; that she was intimate with her sister, and often visited her; that Eush was present when the deed was made, and the girl, Eve, had not previously been in his possession.

Rush’s insolvency about that time is also proved by other witnesses. On the other hand, George C.

Pearson, the brother of the above named witness, states, that his father, John Pearson, actually gave this slave Eve to James Eush, two months and ten days before this deed to Wade was executed, and sent her by the witness from Fairfield District to Columbia, a distance of forty-five miles, with directions to deliver her to said Eush, which the witness did; that he was living with his father, had been well acquainted with the negroes named in the deed, and that on the 10th day of April, 1831, the date of said deed, the other slaves embraced in it were in Greene county in this State, under charge of an overseer; that said Pearson and the witness removed to Greene county in April or May, 1831, when the said George took the control of said slaves and others, and retained them until he made another and different disposition of them than that mentioned in the deed.

This witness, upon a most elaborate examination, gives the history of the family of his father, and the various disposals of his property among his children, and evinces a very thorough acquaintance with his father’s transactions, which he details with much particularity, and in such manner that, if incorrect, they could easily have been disproved. Yet, his testimony remains uncontradicted in any particular, except so far as it conflicts witb that of Mrs. O’Neal, Ms sister.

The Chancellor was of opinion, that her testimony, coupled with the evidence of Eush’s insolvency, should prevail over his, and decreed for the complainants. We feel some hesitation in disturbing a decree predicated, like this, upon a conclusion as to the facts, and which, though it be found either way, leaves the mind embarrassed by some incertitude as to its correctness. But the law has wisely provided certain tests, by which we must try the evidence, to ascertain its weight, and by which we must be governed in adjudging its preponderance.

The legal presumption being in favor of innocence and honesty, the law does not justify the rash conclusion, that, because there is a seeming conflict between two witnesses in their testimony, one or the other has wilfully perverted the truth; but casts upon the court the duty of first endeavoring to reconcile the testimony, if this can be done, without resorting to strained and unnatural inferences in aid of either party.

Assuming, however, as in this case, that the conflict is real, and not merely seeming, and that the witnesses are equally honest and desirous of speaking the whole truth, then, as one or the other of them must have been mistaken, we must ascertain with which the mistake lies. To do this, we must look to the capacity of the witnesses, their respective opportunities of knowing the facts about which they depose, and the nature of the facts deposed to, as calculated to impress themselves with more or less force upon the memory.

If, upon applying these tests, we can readily perceive how one may be mistaken, and that the other, if the testimony be untrue, must have committed perjury, the law inclines to the more charitable conclusion, that the one is mistaken rather than that the other has committed this crime. Guided by these rules, and being fully satisfied in this case that both Mrs.

O’Neal and the witness Pearson were actuated by a sincere disire to speak the truth, we are pretty clear in the conclusion that she was mistaken, in that portion of her testimony in which she says that the negro Eve was not in the possession of James Rush before the 10th day of April, 1831, and that she, with the other slaves mentioned in the deed to "Wade, were brought to Columbia by her father and then delivered to the trustee. She was a married lady, residing in Columbia; and although she often visited her sister, Mrs.

Rush, who resided in the same place, yet the negro Eve may have been there and she have known nothing about it, especially as her sister was engaged in keeping a public house, requiring the employment of a number of servants. But the testimony of Mrs. O’Neal, that Eve was not there before her father brought her on the 10th April, is of a negative character; she may have been there, as we have said, and this lady have been totally ignorant of the fact. On the other hand, Gleorge C. Pearson swears, that he took her there more than two months before. His testimony is affirmative, and is connected with

an act performed by him well calculated to impress his memory. This, coupled with the facts that he lived with his father, was conversant with his business, removed the same year with him, and only some two months thereafter, to this State, goes strongly to show that he could not well be mistaken, either as to the fact of the gift and delivery of Eve by his father to James Rush, or the time when the gift was so made. The testimony of Wade, the trustee, throws but little light upon the transaction.

He says, he was sent for when the deed was executed, and desired to act as trustee under the deed; that some negroes were shown by Pearson, but he has no recollection what negroes. He thinks that James Rush removed to Alabama in 1838 — ’34 or ’35, and that he acted as trustee until his removal, when he gave up to the family the deed, to take with them; and that the negroes were in possession of said Rush, by his (the trustee’

s) consent, for at least eight years, when they were removed by his consent from the State; so that, according to this witness, the negroes spoken of must have gone into Rush’s possession in 1827, or before that period; but he is doubtless mistaken.

Upon the whole, we think it may safely be predicated of the testimony, that the slave Eve was given by John Pearson to James Rush, in February, 1831; that on the 10th of April of the same year, the deed to Wade was made, and this woman was included in it; that she was afterwards sold by Rush, on the 7th. day of January, 1837, to Hitt, the plaintiff in error, for a valuable consideration, he being a bona fide purchaser.

Under such circumstances, even had J ames Rush consented to the declaration of -trust made by John Pearson, in favor of Rush’s wife and children, such consent could not operate to defeat the title of a bona fide purchaser for a valuable consideration without notice, as Rush retained the possession of the slave and sold her as his own property.

If his consent to Pearson’s deed, or rather his being present when it was made, and his failure to object, (which is the only evidence of his consent,) could operate as a parol declaration of his intention to give; yet the evidence fails to show a delivery by him, which is required to perfect such gift. The fact that he was regarded as insolvent, while it may go as a circumstance explanatory of the gift to a trustee for the benefit of Mrs. Rush and her children, is not inconsistent with the idea of a previous gift to Rush himself.

At all events, we do not think it should be allowed much weight, against the positive testimony of the witness on this subject. In view of the whole testimony, we think the complainants, on whom the burthen of proof rested, have failed to make out their case, and that Rush was the owner of Eve and her increase when he sold to Hitt. Our conclusion is, that the decree of the Chancellor should be reversed, and the bill must be here dismissed. Let the complainants in the court below pay the costs of this court and of the Chancery Court.