
    Mary E. Moore vs. Michael J. McKie.
    In the trial of the right of property for slaves, where the claimant was a feme covert, her husband is not a competent witness to testify in her behalf.
    A father who has made a deed of gift, with warranty, to his daughter, of slaves, for the consideration of love and affection, and of ten dollars cash paid, is a competent witness in her behalf, in a trial of right of property, between the plaintiff in an execution (against his daughter’s husband) who had levied on the slaves, and the daughter who was claiming them.
    In a deed, the recital of the consideration of love and affection, and the further consideration of ten dollars cash paid, is not conclusive of the consideration ; it may be shown, in an action for the breach of the warranty, that that sum had not in truth been paid.
    As a general rule, the grantor or vendor with warranty, is an incompetent witness to sustain the vendee’s title.
    In the trial of right of property, the sureties in the claimant’s bond are incompetent witnesses in his behalf; but the claimant has a right to substitute new sureties, so as to discharge the old, and it will be error to refuse it.
    But if such sureties are disqualified from other causes, it will not be error to refuse the change of sureties.
    In error from the Madison circuit court.
    Michael J. McKie obtained judgment in the circuit court, against M. T. Moore, and had his execution levied upon four slaves, which Mrs. Mary E. Moore, the wife of the defendant in the execution, made formal claim to by affidavit and bond and an issue to try the right of property was regularly made up between the parties, and the cause submitted to a jury.
    Various witnesses were examined, the substance of whose testimony is declared in the opinion of the court; but during the progress of the trial Mrs. Moore proposed to introduce, to testify in her behalf, M. T. Moore, her husband, the defendant in execution, and her father, John Webb, from whom she claimed the negroes in controversy, by virtue of a deed of gift, with warranty, which recited the consideration to be love and affection, and the further consideration of ten dollars cash to him paid. Objection was made to their testifying, because they were sureties for Mrs. Moore, on her claimant’s bond ; whereupon Mrs. Moore offered to substitute a new bond, for the trial of the right of property, with new and different sureties, to be approved by the court, and to cancel the other bond ; but the court below refused to receive the new bond, or allow its execution, or to permit the sureties to testify, to which exceptions were filed.
    The jury, upon the proof, found for the plaintiff in execution, the claimant moved for a new trial, because, among other things, the new bond was not received and the old one can-celled ; the court overruled the motion, and all the evidence being embodied in a bill of exceptions thereto, the case was brought, by writ of error, to this court.
    
      A. H. Handy, for plaintiff in error.
    That the court erred, in refusing to allow a new bond, with sufficient sureties, to be given, in order to render Webb a competent witness, is clear from the following authorities. 3 Phil. Ev. Cow. & Hill’s notes, 1570. 2 Dev. & Batt. 502, which was a case of an attachment bond. 1 Bing. 92, reported in 8 Eng. Com. L. R. 259, which was a case of replevin bond. 3 Serg. & R. 311, a case of an appeal bond. 15 Pick. 51, holding the general principle that a witness, rendered incompetent by interest, may be made competent by having his interest removed, on the trial.
    
      W. Thompson, for defendant in error.
    It is contended for the defendant in error, 1st. That the court below did not err, in not permitting the claimant to give a new bond, for the trial of the right of property, so as to release her husband, Madison T. Moore, and John Webb, her father, from the bond she had given, and which they had signed with her ; for her husband could not, in any court, be a witness for her, and her father had made her a bill of sale for the slaves in controversy, and had warranted the title to her, and was interested in the cause.
    2d. The claimant should have prepared the bond proposed to be substituted; and tendered it to the court, on motion for the substitution of it, and made it a part of the record by bill of exception, upon her motion being overruled, that this court might judge of the bond.
    3d. Upon the sale or gift of slaves to the wife, the husband being entitled to their use, hire, &c., as we understand this court has decided, he therefore has such interest in them, during the joint life of himself and wife, as may be levied on and sold by execution.
    
      W. G. Thompson, on the same side.
    The claimant, who is the wife of defendant Moore, sets up title to the slaves under a deed of gift from her father, executed in 1840. She offered to prove, 'by her husband and her father, that the slaves had not been given by the latter to the former, in 1838.; the court below refused to allow them to testify, they being sureties in the claimant’s bond. She offered to release them, and give a new bond, with other sureties; the coirrt re» fused to allow that. The cause was decided in favor of the plaintiff in execution.
    It seems that the jury were satisfied by the testimony that the slaves had been given by the claimant’s father to her husband. If, however, this were not so, it is contended that the slaves were subject to be sold under the execution. The deed of gift does not vest a separate and exclusive property in the slaves in Mrs. Moore. The husband is entitled, then, to the profits of their labor, as this court has already decided. He has such an interest in the slaves, during the lifetime of Mrs. Moore, it is contended, as is subject to sale for his debts. Under the statute of 1839, he may control and direct their labor, and receive their profits during the lifetime of the wife, or until they shall be sold by the joint deed of himself and wife. What more can be wanting to constitute an actual, though limited, property in the slaves in him, which is subject to sale under execution 1 It is not necessary that a property in chattels should be full and absolute, in order to make it liable to execution. The deed of Mrs. Moore from her father, contains not one word respecting an exclusive right intended to be vested in her.
    
      A. H. Handy, in reply.
    1. Webb was not incompetent, on account of interest, independent of his liability as surety, on the bond for the trial of the right of property; because, 1st. Moore, the husband, having acquired his title, if he had any, from Webb, Webb was as much liable to him, if the title was defective, as he was to Mrs. Moore, in case her title prove defective. His interest was, therefore, equally balanced. 2 Phil, on Ev. 126, (Cow. & Hill’s notes) and cases there cited. 2d. His liability on the covenant in the deed of gift to his daughter, is doubtful; because the deed being clearly one of gift, it is at least doubtful whether the daughter could recover anything from him, in case her title was defective. And the interest, in order to disqualify, must not be doubtful. 1 Stark. 104. Nor remote or contingent, lb. 103, et seq. Clark & Co. v. Kingsland, 1 S. & M. 256. 3d. His interest, if any, might have been removed by release from the covenant. But this point was not made in the court below, and it was not for the claimant to execute a release until the witness was objected to on account of interest. Again ; this court will not now hear the objection to the interest of Webb, arising from the covenant in.the deed, because it was not made at the trial, (as this court has decided it was necessary to do,) and because it would operate a great hardship on the claimant, to have the objection applied in this court, where she is deprived of the power of removing it by release, and thereby he might be found precluded.
    2. The issue for the jury to try was, whether the absolute and entire property in the negroes was in Moore, and their verdict was in reference to such entire and absolute property in him, and not in reference to the proceeds of, or possessory interest in, the negroes. And the plaintiff in execution cannot now justify the judgment in the court below, on the ground that Moore’s possessory interest in the property was liable to execution. Had such interest alone been sought to be subjected to execution, this controversy might never have arisen. But it is certain that that was not the issue, and this court can only regard the judgment below as it actually took place.
    That the negroes were the property of Mrs. Moore, to her separate use and benefit, is manifest from the act of 1839, (H. & H. 332, sec. 24,) 2 S. & M. 165. And this, though there are no words in the deed of gift, limiting the property to the separate use of Mrs. Moore. This would have been necessary at common law, but the statute referred to expressly changes the common law in that respect (section 24 compared with section 23.) And this appears to be the very object of the statute.
   Mr. Chief Justice Shakkey

delivered the opinion of the court.

The plaintiff in error claimed four negroes, which had been levied on by the sheriff of Madison county, by virtue of an execution against her husband, M. T. Moore. The plaintiff in execution introduced William Smith as a witness, who stated that he had known the negroes from infancy; that they had belonged to John Webb, the father of claimant, previous to the marriage of claimant with M. T. Moore, which took place in Tennessee, in the spring of 1838, and they moved to Mississippi in the fall of that year, bringing with them these slaves with others, which had also belonged to Webb. Moore had possession of the slaves, from the time of his removal to this state until the fall of 1840, when Webb made a deed of gift of them to the claimant. Moore had sold two of the slaves to Shotwell, and executed a deed of trust of these slaves with others, for Shotwell’s benefit. Webb moved to Mississippi, in 1841, and shortly afterwards Moore and wife went to live with him, carrying with them the slaves. Witness was the brother-in-law of Webb, and had no knowledge of his having claimed title to the slaves after they were brought from Tennessee, until 1S40, when the deed of gift was made; had heard that Webb claimed one, which had been sold to Shotwell, and was to put another in his place, and redeem him. The witness was intimate with the family of Webb, and had heard conversations about the slaves, but never heard of any reservation, except as to one which had been sold to Shotwell. The plaintiff in execution proved by Shotwell, that he purchased two slaves from Moore, and had agreed that he might redeem them in two years, by substituting others of equal value. Moore stated to him that he had a good title to the slaves sold, aud also to the others embraced in the deed of trust; the negroes were in possession of Moore from 1838 until 1840, when he went to live with Webb, atid he had exercised the usual acts of ownership.

The claimant, in support of her title, read the deed of gift, and offéred to introduce Webb, the claimant’s father, and Moore, her husband, as witnesses, who being sureties in the claimant’s bond, were objected to; whereupon the claimant offered to give a new bond, with other sureties, which the court refused to allow, to which the claimant excepted, and this is assigned as error.

It was undoubtedly competent for the court to allow a new bond to be given, so as to remove the disability of the witnesses, and it was not a mere matter of discretion in the court to allow or disallow it. The party had such a right to substitute new security, as to make it error to refuse it. Irwin v. Carryell, 8 Johns. R. 318. Tomkins v. Curtis, 3 Cow. 251. Leggett v. Boyd, 3 Wend. 376. But this rule cannot apply, when the witnesses are from other causes incompetent. Moore, being the husband of claimant, was on that ground incompetent to testify in her behalf. An objection is also made to the competency of Webb ; because the deed of gift contained a warranty of title. As a general rule, a grantor or vendor with warranty, is an incompetent witness to support his vendee’s title. He is directly interested in the event of the suit. 2 Phil. Ev. (notes) 106. In answer to this objection, it is said that Webb conveyed by deed of gift, which was a mere quitclaim, and is not liable on the warranty. A grantor without warranty, or by mere quitclaim, is a competent witness for his vendee, and a warranty must be supported by a consideration to make it binding. The deed made by Webb is a deed of gift, expressing the consideration to be love and affection to his daughter. It also professes to have been made on the further consideration of ten dollars. This recital, however, is not conclusive evidence that even that small sum was paid ; in a suit for • a breach of warranty, it would be competent for Webb to show that in truth it was not paid. Besides the sum is so inconsiderable, when compared with the value of the property, as to show that in truth it was but a nominal amount, inserted under a notion that some money consideration was necessary, to make the transaction valid. Webb was therefore a competent witness, and because of his rejection the judgment must be reversed and the cause remanded.  