Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-01-29
muInorrAsb y. fItr,ros :, sts.


This was an action of trespass for an alleged IL
legal seizure and sale Of piano forte, which il is
conceded at one time, belonged to Michael Mulhol-
land, but which the plaintiff. who is his brother,
claiias to have purchased Of him in the State Of
virginia, where, at the time, they both resided.
there is evidence tending to show that The
SAID Michael had become indebted to the plaintiff n
tue sum Of about three hundred and forty dollars
LOT .ork done Ter him by the plaintiff in the com
P,e',en OF conSact upon railroad, the said Mi
SAsei oeng the contractor, end that in payment Of
TINS debt he let the complainant have the piano.
Subsequent to this sale the said Michael moysd 20
the STATE Of Tennessee, aud there is proof that
Hnen ne Ess about leaving the State Of Virginia.
the plaintiff loaned the piano 10 his wife Who
seemed 70 nave been teacher of music, telling her
S - %ou4I neip 70 support her, and that she and
her husband brought il with them 70 1JeAsrsoD
county, IN this State, where certain of his sraJ;,
WSose oeots as Is TO be inferred from this record
were contracted after his removal frorn W.T.
caused executions to issue to the sheriff md.
which ne made sale OF the piano, and this is the
trespsss complained Of Verdict and indgaant
we're rendered for the defendants and the rIs;ntis
appeals Upon the trial it would seem the r;gbt ~
the plaintiff 10 recover was denied both NAV ,ha
ground that sale ofthe piano had been uads to him
and if made, that the sale was fraudulent and in
tended 10 hinder the creditors Of the said Michael
he being at the time very much indebted
The plaintiff took the deposition Of one Hancock
in which there was proof to the effect that he was
not present and did not witness the sale Of The n.
no by Michsel to the plaintif. But that in Jane.
1854, the said Michael being largely indebted 10
him, aud he being security to him for others, he
agreed to give BIN deed Of trust on his property
for the benefit Of himself and some of his other
creditors, that witness proceeded to take list sf
the articles TO be embraced in the proposed deed of
trust, and in doing so the piano mentioned by
him, whereupon Michael Muholland Immediately
said the piano should not be included in the deed
of rust, as he he'd already disposed Of it, or
sold 1t to Peter Mulhollsnd (the paintf) for debt
he owed him. the said Peter was present at the time
and further conversation then took place between
the said Peter and the said Michael in relation TO
the piano, and the sale of it, the substance Of which
was that there sale of the piano from Mi
chsel to Pster for vsuale consideration and th at
certain brown mare was purchased by Peter Of
Michael for the same purpose. This proof upon
objection By the defendants, was excluded from the
jury by the Circuit Judge.
IL seems to us that this is erroneous. Msnifestly,
in contest between the plaintiff and the said Mi
ehaei in regard to the title of this property, these
admissions would be competent against him upon
the principle Of declaration against his interest
And also lie contest between the plaintiff and
third party claiming this property under purchase
made by him Of said Michael at period subsequent
to the admissions, they would be admissible be-
cspse the purchaser is in privity with his vendor
and takes the property unincunbered With his de-
q
privy in estate and therefore in law from the party
himself
Thus it has been held, upon an issue between
two persona, whether third person died possessed
Of certain personal property, that evidence might
be given of declaration made by that third per
son that he hal assigned the property, the party
against whom the declarations were adduced, claim.
ing under that person. Ira4 Finch, ! Taunt
14l. This principle is expressly settled in Guy vs.
Hall, Murph R. $50, and Nay VS.. Gentry. Dew
and Bait Law &. III The declarations are not
only against the men who made them, but against
ore claiming under him by cotemporsneous or
subsequent contract. These admissions By third
persons, as they derive their value and legal force
from the relation Of the party making them to the
property in question may be proved by any eOnpe-
tent witness who heard them, without calling the
party by whom they we're made
The question is whether he made the admission
aBd not merely whether tae fact is he admitted it
to be-
It's truth where The admission ia not conclusive
land it is seldom sol may be controverted by other
testimony even by calling the party himself
when competent hut it is Tot necessary to produce
him, his declarations when admissible at all being
admissible as original evidence and not as hear
say, and to be taken as part Of res gestao. l |
Gresnl Ev sec ls9, 100, l6l 8 Murph. $50
AID it is immaterial whether he be dead or q !
alive, or that he msy be examined as a witness in
the case, his declarations being still admissible
making out title. Now, upon what principle |
is 1t, that The creditors of Michael Mulholland,
who have become such since these declarations |
were made shall escape being onefated with them |
as evidence9 Do they not claim under him and |
seek to sell this property as his Il is true they
may not in all respects be in privity with him Since
they may sssail the transaction between him and the
plaintiff for fraud and thus undo what csuld not;
and so may ssubsequent purchaser who was intend
ed to be defranded by the previous sale, ssd yet We
have seen he admissions evidence against him |
If the witness had heard the sale made between the
plaintiff and his brother, then beyond all debate |
what they said and dsne at the time woald be ad-
missible. Aud if they afterwards, when together,
or the ssd Michael when alone, before The exist |
ence of the debts of these creditors declared the
fact OF the sale or its terms these declarations in
our opinion, become original evidence of the claim
tifs tite, and were admissible for whatever thew
were worth, in contest with the creditors, not I
only on the principle Of privify before stated but
as method of establishing title. We are not 10 be
as holding tia. if the debts Of these
creditors originated anterior to the declarations or
even to the plaintiffs purchase, they would not
upon The principles stated, be equally admissible
On the contrary, We think they would, the levy
upon the property Geing subsequent declarations
But if the lien OF the creditors attached prior to
the declarations, then they could not be affected by
Them. or course, the Sheriff or ether officer, in
seEing this property, would be subject to the same
rules of evidence.
But it is said if this be 80 there should not be a
new trinl because the said Michael himseh was ex-
smined by the plaintiff, and established the sale
upon oath. and tibet therefore the evidence of Ham
;ock was unneeessary-it being impossible that the
acre declaration or admissions Of the witnesses
could be of greater weight in the than his oath
But they were not as detailed by Hancock the mere
or admissions Of Michael, but some
hing more. clEcHmstsntisl narrative Of the
,ontract Of sale was made between Peter and Mi.
,hsel. Gut if they we're the mere admissions of
Michael, We cannot stop to inquire how much ad-
iitional weight the evidence thus Improperly with
led from the Jury, might have had with them, had
been reversed. We can readily see that the re-
ected evidence might upon the state of facts in
his record, have had an important influence in the
sse. 9 Kemp. 222, 224.
The judgment will be reversed and q Se~ trial
awarded. WRIGHT.
A true copy. Teste: