Wilson, Admr. of Owen, v. Woodruff, 5 Mo. 40

Opinion of McGirk, Judge. Wilson brought an action of dêtinue again$t Woodruft for a negro woman. The defendant appeared and pleaded nox detinel, property in himself, &c. Whereon the cause was continued to the next term of the court. At the next term of the court, and before the trial came on, the plaintiff in pursuance of the statute, filed a bill of ctis-covery, by which he alleged that the defendant hadm reality no title to the slave, but pretended to have a bill of sale, and to have paid $200 for the slave.

The bill also alleges that it was well understood and agreed between the intestate and the defendant that the title should not pass,but that the title should still remain in Owen, and Woodruff should have the possession, and should seem to the public to have the title. The bill alleges that not one cent of money was ever paid by Woodruff to Owen the slave; prays a discovery, &c. The defendant filed his answer, and to this answer the plaintiff excepted, and the court overruled the same.

Where terVsale^that he had sold, &c., bave ,been §*ven ihe party-wishing to establish titleb in vendee — the °vPiíi°not be'aKow-ed to give in evi-deuce declara-contradictory to the first, made at another time, and oi I cannot discover that the defendant failed to answer any thing as he should have done, except one thing, which is this: the plaintiff'alleges the .defendant never paid one cent for the slave.

The defendant’s answer this is, not that he paid the price of the negro to Owen, with his money, which was the thing sought after, but that the money was paid, without saying for whom, or by whom, or whose money the same was. In this particular, I deem the answer evasive, and I am of opinion the court erred in overruling the exceptions. The plaintiff then filed an amended bill of discovery, which the court refused to receive. This is also complained of as error. It is argued by Mr. Clark, for the defendant, that this bill came too late.

Whether the court erred in refusing this bill I am not satisfied; enough does not appear on the record to stisfy me the court erred. The plaintiff' went to trial. A verdict and judgment were rendered against him. On the trial, it was proved that the slave formerly belonged to Woodruff; that he sold her to one Isaacs, and that Isaacs sold her to Owen. The defendant gave in evidence that after the slave went into possession of Woodruff, and before the death of Owen, Owen declared and said he had sold the slave to the defendant.

The plaintiff then offered to prove that, at another time, when Woodruff was not present, Owen said he had not sold the slave to the defendant. This evidence was rejected. The plaintiff complains that in rejecting this evidence the court erred. To prove the circuit court erred, Mr. Wilson cites and relies on the case of Nowlin v. Foster, 1st Semi-annual part Mo. Decisions, 18. As this case has been relied on, and has been cited at bar several times in other cases, I will give some attention to the case.

The case has been relied on in the argument now before the court, and in several other cases, to prove that when evidence is given that the vendor after a sale says he has sold the property» that if at another time out of the presence of the ven-¿@3 declares that he has not sold the same, the latter declaration may be given in evidence to contradict the former. I apprehend the case of Foster v. Nowlin not settle the law to be so.

I take the rule to be that what a man says against his interest is good evx-against him, and that all he says at the time, by way of explanation, or even denial, is to be taken with admissions together.. But that what he says at another time, (unless the adversary be present,) affirming his interest, is no evidence foi him. I will examino the case above cited, and will show that in that case the court did not contradict this rule.

In that case the question was whether certain property belonged to one Simmons, against whom judgment bad been obtained, or to Foster, who claimed the same, notwithstanding the possession had always remained with Simmons. The Fosters, who claimed the property as theirs, notwithstanding the possession never had been in them, but had always been in Simmons, proved that Simmons said, while he had the possession and use of the property, it was not his.

The plaintiff, Nowlin, who asserted that the property was Simmons’, and vt ho was seeking to make it pay Simmons’debt to him, objected to this evidence, but the court let the evidence go. If this decision were erroneous, Now-lin could not then reverse it, nor was it safe for him to let it pass without rebutting it; and for this purpose he proved that while Simmons was yet in possession, he declared the property was his.

On this point the court said the after declaration of Simmons, made by him while he was in possession of the property,was evidence to show how he viewed the title, or rather to show the nature of the possession. Now in that case, both parties claimed under Simmons, and as Foster had given evidence to show how Simmons esteemed his possession at one time, it was but right that the other party should show that at another time he viewed it differently ; and this was fair rebutting, evidence in that case.

The mistake of counsel, as lap-prehend, exists in supposing this court approve of the admission of Simmons’ first declarations. I think it ia not certain but that the court did err, but the evidence having been let in, it was right to rebut it by after declarations of Simmons. The case of Nowlin v. Foster, was a case where a person, claiming to fee vendee, gave. in evidence the declarations of his supposed vendor, af•ter the sale, in affirmance of the vendee’s title.

Now this could not be lawfully done, unless indeed, the fact of the vendee’s remaining and being in possession the declarations are made forms a just reason why it should be so. This principle dared by the ^onsL't'ent1 ■the opinion in •Foster The question in the case at bar is not like, the case of Nowlin v. Foster. I am clearly of opinion there was no error on this point, but for the first error above stated, the judgment is reversed and remanded.