STONE, J.
In the questions which are pressed upon our consideration, no contest is. raised as to the validity of the gift, by William Bragg to his daughter, Mrs. Massie, of the slave Amy; nor of rhe subsequent exchange of the .slave Catherine for Amy. The jury, by their verdict, impliedly affirmed that such gift was made and perfected; -• and the questions bearing on the merits of this case, which we are called upon to decide, all rest on. the postulate, that the gift was- completely consummated. On any other hypothesis, the plaintiff’s intestate never bad title, and the present suit would have failed on that ground ; while, on the other hand, the defendant’s title would be unques- • tioned, both by his* purchase from. William Bragg, and by - [102]*102his recovery of-the.identical property in controversy in this suit, in an action of .detinue brought by him against William Bragg- Henee, in considering the questions raised by the charges given and refused, we will regard it as conceded that, at -the time of -the intermarriage of Ann Eliza with Mr. Massie, she-,was the owner of the slave Amy, and ■that subsequently, during the time ef her coverture, she, .with .the approbation of her husband, exchanged Amy for ¿the girl Catherine.
The uncontroverted, leading facts -of this case, -then, .are -the following: Ann Eliza Bragg was the' owner of the ,-.slave Amy, and lived with her father, William Bragg, -where the slave also lived- She .intermarried with Mr. .Massie, plaintiff’s intestate, with whom she lived, also at rthe house of her father, until the death of her husband, -.which took place only a few months after the marriage. .During the life-time of Mr. Massie, Mrs. Massie, in his presence, and with his approbation, exchanged with her ■father the-slave Amy for the slave Catherine. Mr. Massie .died in the summer or -fall of 1837, intestate. William Bragg was appointed administrator of-,the estate of Mr. Massie, in .November, .1838, and returned an inventory of his effects, -omitting - all mention of the slave Catherine. William Bragg continued administrator of ¡the estate of Mr. Massie, until August, 1858, when ho resigned, and Mr. Davis, the present plaintiff, was appointed administrator ■ de bonis non. Mrs. Massie continued to live-with her father, William Bragg, except for about one -year, which was after ;her second marriage in 1844. ,-In-1841, between two and .three years after he was appointed administrator of Mr. .Massie, William Bragg, by private contract, and in his own right, conveyed his property, including the slave Catherine, by deed absolute on its faee, to David Bragg and William iH. Knott, who .thereupon took possession and control of the property, .and worked it until about the year 1848; William .Bragg and his daughter, Mrs. Massie, returning to tthe place-some-few months after the sale, and living upon lit -.with '.Mr. Knott, who was son-in-law to William Bragg.
[103]*103In 1842, Catherine was sold at sheriff’s sale, as the property of David Bragg and Knott, to satisfy an execution which was the proper debt -of William Bragg; was bought in for the benefit of David Bragg and Knott,, and returned to the plantation from which she had been taken, namely, the plantation conveyed by William Braggvto David Bragg and Knott, About.the year 1848, David Bragg aiuLKnott made a division of ;.the slaves which had been conveyed, to them by William Bragg, and the slave Catherine was allotted to David Bragg. Immediately after this division, David Bragg sent the ¿laves which had been allotted to him, to the place occupied by -William Bragg, and they continued with him until 1656, when David Bragg recovered them from him in an action of .detinue. There was some proof tending to show that the -deed from William Bragg to David Bragg, though- absolute.-.on 'its face, was intended and understood as only a mortgage security. There was proof, also, tending to show that William Bragg conveyed the slave Catherine as above.-stated,.in ignorance of any claim which the estate of 'Mr. Massie had to himtj .believing at the-time that she was the property * of Mrs. Massie. There -.was some proof, -also, tending to show that Mrs. Massie, when informed .that Catherine had been deeded away, was dissatisfied ; and that David Bragg informed her that Catherine -should go back to her.
[1.] We may state, further, that we do not understand the counsel as controverting the proposition,-.that when Ann Eliza intermarried with Mr. Massie, the -«lave Amy became his property,,j and that when the exchange of slaves was made, the slave Catherine also became Ms property. In fact, these seemáo be self-evident propositions, there being no evidence in -this record that Mr. Massie renounced his marital rights, — Machen v. Machen, 15 Ala. 373; Thrasher v. Ingram, 32 Ala. 645 ; Machen v. Machen, 28 Ala. 374; Bell's Adm’r v. Bell, 37 Ala. 536.
Waiving then, for (the present, all question of >the consummation of the gift, we will address ourselves to.certain points which have been pressed -upon our attention as [104]*104grounds of reversal in this case. The appellant makes-the following points:
1. That Mrs. Massie held the slave Catherine adversely to her father, the representative of her husband’s estate y. that tbe interest of the estate in the slave Catherine was, therefore, a mere chose in .action, which the administrator Iipd a right to sell at private sale;. and that such private sale vested the title in David Bragg and William Knott, the purchasers.
2. That Mrs. Massie held the slave adversely to her. father; that she, and those holding under her, have had the uninterrupted adverse possession for more than six years • after William. Bragg was appointed administrator; and-that, on this account, the claim of the estate is barred.
3. That,- conceding the private sale by William Bragg to David Bragg and Mr.- Knott to have been illegal, (that being the only theory on which this suit .is maintainable,) tbe sale, under our law, was simply void; .that being void, when tbe action of-detinue was-brought by David Bragg against William Bragg, the latter was not estopped by his sale from vesting,bis defense on.,tbe invalidity of the con- . tract; that William Bragg could and should have defended . his-possession on the title of his intestate, and that the re- . covery in that action is conclusive against the title of Mr., Massie’s estate.
4. That the deed from William Bragg to David Bragg and Mr. Knott was only a mortgage to secure the payment of a debt; that the debt had., been extinguished; and. therefore, William Bragg, by suffering the former recovery, estopped the estate from- recovering tbe property.
[2.] In this case, there is no evidence that Mrs. Massie held adversely to her father, William. Bragg. The father and daughter lived together, and each exercised some control over the slave.. Looking alone to the question of control and dominion, .the possession would be pronounced a joint possession. Neither was holding adversely to the-other, in that sense which could ripen into a title by mere-force, of tbe possession.. As conclusive., evidence of this [105]*105face, we find' that the father, while the joint possession continued, sold the slave, and delivered the possession to another. This shows that his claim was not a chose in action, and relieves us from the consideration of the question, whether, if Mrs..Massie had been holding the slave adversely, the administrator could have made a valid private sale to a. third person.
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STONE, J.
In the questions which are pressed upon our consideration, no contest is. raised as to the validity of the gift, by William Bragg to his daughter, Mrs. Massie, of the slave Amy; nor of rhe subsequent exchange of the .slave Catherine for Amy. The jury, by their verdict, impliedly affirmed that such gift was made and perfected; -• and the questions bearing on the merits of this case, which we are called upon to decide, all rest on. the postulate, that the gift was- completely consummated. On any other hypothesis, the plaintiff’s intestate never bad title, and the present suit would have failed on that ground ; while, on the other hand, the defendant’s title would be unques- • tioned, both by his* purchase from. William Bragg, and by - [102]*102his recovery of-the.identical property in controversy in this suit, in an action of .detinue brought by him against William Bragg- Henee, in considering the questions raised by the charges given and refused, we will regard it as conceded that, at -the time of -the intermarriage of Ann Eliza with Mr. Massie, she-,was the owner of the slave Amy, and ■that subsequently, during the time ef her coverture, she, .with .the approbation of her husband, exchanged Amy for ¿the girl Catherine.
The uncontroverted, leading facts -of this case, -then, .are -the following: Ann Eliza Bragg was the' owner of the ,-.slave Amy, and lived with her father, William Bragg, -where the slave also lived- She .intermarried with Mr. .Massie, plaintiff’s intestate, with whom she lived, also at rthe house of her father, until the death of her husband, -.which took place only a few months after the marriage. .During the life-time of Mr. Massie, Mrs. Massie, in his presence, and with his approbation, exchanged with her ■father the-slave Amy for the slave Catherine. Mr. Massie .died in the summer or -fall of 1837, intestate. William Bragg was appointed administrator of-,the estate of Mr. Massie, in .November, .1838, and returned an inventory of his effects, -omitting - all mention of the slave Catherine. William Bragg continued administrator of ¡the estate of Mr. Massie, until August, 1858, when ho resigned, and Mr. Davis, the present plaintiff, was appointed administrator ■ de bonis non. Mrs. Massie continued to live-with her father, William Bragg, except for about one -year, which was after ;her second marriage in 1844. ,-In-1841, between two and .three years after he was appointed administrator of Mr. .Massie, William Bragg, by private contract, and in his own right, conveyed his property, including the slave Catherine, by deed absolute on its faee, to David Bragg and William iH. Knott, who .thereupon took possession and control of the property, .and worked it until about the year 1848; William .Bragg and his daughter, Mrs. Massie, returning to tthe place-some-few months after the sale, and living upon lit -.with '.Mr. Knott, who was son-in-law to William Bragg.
[103]*103In 1842, Catherine was sold at sheriff’s sale, as the property of David Bragg and Knott, to satisfy an execution which was the proper debt -of William Bragg; was bought in for the benefit of David Bragg and Knott,, and returned to the plantation from which she had been taken, namely, the plantation conveyed by William Braggvto David Bragg and Knott, About.the year 1848, David Bragg aiuLKnott made a division of ;.the slaves which had been conveyed, to them by William Bragg, and the slave Catherine was allotted to David Bragg. Immediately after this division, David Bragg sent the ¿laves which had been allotted to him, to the place occupied by -William Bragg, and they continued with him until 1656, when David Bragg recovered them from him in an action of .detinue. There was some proof tending to show that the -deed from William Bragg to David Bragg, though- absolute.-.on 'its face, was intended and understood as only a mortgage security. There was proof, also, tending to show that William Bragg conveyed the slave Catherine as above.-stated,.in ignorance of any claim which the estate of 'Mr. Massie had to himtj .believing at the-time that she was the property * of Mrs. Massie. There -.was some proof, -also, tending to show that Mrs. Massie, when informed .that Catherine had been deeded away, was dissatisfied ; and that David Bragg informed her that Catherine -should go back to her.
[1.] We may state, further, that we do not understand the counsel as controverting the proposition,-.that when Ann Eliza intermarried with Mr. Massie, the -«lave Amy became his property,,j and that when the exchange of slaves was made, the slave Catherine also became Ms property. In fact, these seemáo be self-evident propositions, there being no evidence in -this record that Mr. Massie renounced his marital rights, — Machen v. Machen, 15 Ala. 373; Thrasher v. Ingram, 32 Ala. 645 ; Machen v. Machen, 28 Ala. 374; Bell's Adm’r v. Bell, 37 Ala. 536.
Waiving then, for (the present, all question of >the consummation of the gift, we will address ourselves to.certain points which have been pressed -upon our attention as [104]*104grounds of reversal in this case. The appellant makes-the following points:
1. That Mrs. Massie held the slave Catherine adversely to her father, the representative of her husband’s estate y. that tbe interest of the estate in the slave Catherine was, therefore, a mere chose in .action, which the administrator Iipd a right to sell at private sale;. and that such private sale vested the title in David Bragg and William Knott, the purchasers.
2. That Mrs. Massie held the slave adversely to her. father; that she, and those holding under her, have had the uninterrupted adverse possession for more than six years • after William. Bragg was appointed administrator; and-that, on this account, the claim of the estate is barred.
3. That,- conceding the private sale by William Bragg to David Bragg and Mr.- Knott to have been illegal, (that being the only theory on which this suit .is maintainable,) tbe sale, under our law, was simply void; .that being void, when tbe action of-detinue was-brought by David Bragg against William Bragg, the latter was not estopped by his sale from vesting,bis defense on.,tbe invalidity of the con- . tract; that William Bragg could and should have defended . his-possession on the title of his intestate, and that the re- . covery in that action is conclusive against the title of Mr., Massie’s estate.
4. That the deed from William Bragg to David Bragg and Mr. Knott was only a mortgage to secure the payment of a debt; that the debt had., been extinguished; and. therefore, William Bragg, by suffering the former recovery, estopped the estate from- recovering tbe property.
[2.] In this case, there is no evidence that Mrs. Massie held adversely to her father, William. Bragg. The father and daughter lived together, and each exercised some control over the slave.. Looking alone to the question of control and dominion, .the possession would be pronounced a joint possession. Neither was holding adversely to the-other, in that sense which could ripen into a title by mere-force, of tbe possession.. As conclusive., evidence of this [105]*105face, we find' that the father, while the joint possession continued, sold the slave, and delivered the possession to another. This shows that his claim was not a chose in action, and relieves us from the consideration of the question, whether, if Mrs..Massie had been holding the slave adversely, the administrator could have made a valid private sale to a. third person. — See Woolfork v. Sullivan, 23 Ala. 548; Bogan v. Camp, 30 Ala. 276. The case is clearly within the principle which holds,- that where two persons are in the joint possession of property, the title being in one, the law will refer the possession to him who has the title. — Governor v. Campbell, 17 Ala. 366 ; McCoy v. Odom, 20 Ala. 502 ; Michan v. Wyatt, 21 Ala. 813.
[3.] The sale by William Bragg was a private sale by an administrator, of a slave, the property of his intestate’s estate.;, and under the principle settled in Sístole v. Street, (5 Porter, 64,) the title to the property did not pass out of the estate;. hut William Bragg estopped himself from recovering the property from his vendee. — Fambro v. Gantt, 12 Ala. 304; Lay v. Lawson, 23 Ala. 377 ; Weir v. Davis, 4 Ala. 444.
What we have said above disposes of the first and second points made in argument by appellants.. Mrs. Massie never had the adverse possession.
A full answer to the third point made in argument for the appellant, is furnished in the fact, that the sale by William Bragg to David Bragg and William Knott, was not executory, but executed. It. was perfected by delivery; and Messrs. David Bragg and Knott took and-retained possession under their purchase. Having subsequently acquired the possession from David. Bragg,: William Bragg was as much .estopped from relying on the invalidity of the sale made b.y himself, as if he himself had been plaintiff, suing for the property. The case is not within the principle settled in Fambro v. Gantt, supra, or in Gunter v. Leckey, 30 Ala. 591. The recovery in the action of detinue by David Bragg against William Bragg, is no bar to the present suit; for the title here relied on could not have been litigated in that suit.
[106]*106[4.] Tbe fourth point we must also decide against the appellant. In a suit at law, it is not permissible to vary, by parol proof, the terms of a deed absolute on its face, so as to make it operative only as a mortgage security. — Jones v. Trawick, 31 Ala. 256 ; Parish v. Gates, 29 Ala. 261, and authorities cited.
Tested by the principles above declared, we hold, that the circuit court committed no error available to appellant, either in the charges given, or in the charges refused. Those given correspond substantially with the views we have expressed. Of those refused, the ,1st, 4th and 6th, are abstract. The rest do not assert correct legal propositions, and were properly refused.
[5.] What was said by the witness William Bragg, in reference to the gift of a slave to his daughter Elmira, related to an ..act contemporaneous with .the alleged gift to Ann Eliza,'Was part of the ras. gesteo., , and was harmless in its character,; and we perceive no error in permitting the witness to speak of it. He was .testifying of what he had said at the particular time, and this was given by him as a part of the conversation. This, together with certain answers of the witness as to the possession and recognized ownership of the negro girl, before the marriage of Mrs. Massie, all tended to shed light on the question of gift vcl non, which was a material and controverted question on the trial in the circuit- court.
We are not able to perceive any relevancy to,-the issue in this cause, of the fact sought to be proved, that the defendant (David Bragg) held a note against William .Massie, which had been presented to William Bragg, the .administrator, and not paid. Nor do we perceive any error in the court’s ruling, which allowed the witness to state the reasons why he paid taxes on the slave Amy, after the gift, and while Ann Eliza was a minor living in his family.
We find no error in the various rulings of the circuit som-t, and.its judgment is consequently affirmed.