GHIDTON, Ji
1. The first exception, ,on the part of the claimants, was to-the admission in evidence.of the declarations of Beverly; .made to the officer who levied the attachment upon the ■ Brig,.at,the time.of the levy. Said Beverly, upon being asked: by tha-officer. if:'the captain was on board, replied, “that the• captaimwas -notion ¡hoard, ¡but. that.he (Beverly) was mate of the [728]*728Brig; that the Brig belonged to George II. Johnson; that 'he held possession of the Brig for said Johnson, and was employed by Aim.” The bill of exceptions states that <c the claimants moved the court to exclude this evidence from the jury; but the motion was overruled.”
The authorities, generally, agree that the declarations of one in possession of either real or personal property, explanatory of the possession, may be received as evidence, since they constitute part of the res gestas; but declarations explanatory of past transactions, or as to the mode in which title was acquired or is held by a third person, not explanatory of the possession, are disallowed. According to this rule, a portion of the proof which the court was asked to exclude was indisputably legal, and if it were conceded that other portions were not, still as the objection applied to the whole, the court properly overruled the motion to exclude it.- It is settled, that it is not the duty of the court, in such case, to distinguish and separate that portion which is legal from that which is not; but it may refuse such general motion to exclude the whole.—Borland v. Walker et al., 7 Ala. 269; Donnell v. Jones, 13 ib. 490. It is unnecessary, therefore, for us to criticise this evidence and to decide what portion, if any of it, was illegal.
2. There was no error in allowing the defendant in error to prove the directions given by Johnson to the captain of the vessel, under which the latter acted. These directions, coupled with the acts in compliance with them, were parts of the thing done, and explanatory of it, and tended to show the control and management of the vessel by Johnson before the levy, and to raise the presumption of ownership.
3. But we are unable to perceive what legitimate influence the proof of directions given by him after the levy was made, and the vessel, had been replevied by the interposition of the claim, could have upon the matter in issue. The claimants, after they had entered into bond for the trial of the right of property, and the Brig had been delivered to them, had the right to place her in the possession of any person they pleased. Tire vessel was in the custody of the law. The claimants and their sureties on the delivery bond were bound for her forthcoming, in the event of a judgment of condemnation, and nothing said by the defendant in execution, or done by him, except in the [729]*729^presence of the claimants, and by their assentj express or implied, •could properly be received to invalidate their claim. They had ■the right to continue the vessel in her accustomed employment, ;and under the same direction to which «he had formerly been ■subjected, without being put to the alternative of explaining the ■circumstances of the -subsequent possession, or halving-an inference drawn from it prejudicial to them. We are not prepared to say, however, that under a proper issue, this eviderice, if offered in connection with proof'that the. claimants held a lien merely for their indemnity, which lien had been discharged by •Johnson since the claim was put inj would have been irrelevant-. Such acts of ownership would tend to show the discharge of the lien, and that the property had re-vested in Johnson.
4. As the plaintiff in the attachment seeks to condemn the interest of Johnson in the vessel, it is very clear that his (Johnson’s) declarations or admissions, while he was in possession of the Brig, made after his purchase and before .the ■ levy, in disparagement of his title or interest, are proper testimony-. — 1 Greenl. Ev., § 190.
5. The reasons for the exclusion off the bill of sale from Heim ■to Fontaine & Dent are not set forth; but we take it for granted the court was of opinion, that the same, having been executed subsequent to the levy of the attachment, could not be received to affect the levy. Had the issue been properly made, the exclusion of this instrument would have been clearly erroneous. But the question being narrowed down by mispleading, to the liability of the Brig to the attachment ut the time of the levy, the bill of sale, dated after the levy was made, was prima facie irrelevant, as it was outside of the issue. But the issue was clearly immaterial. Conceding that Johnson was the mortgagor, and that at the time the levy was made the law day had not arrived, when the mortgagee was entitled to the possession, then the interest of the mortgagor in possession was subject to levy; but it by means follows that the property must be condemned, for when the mortgagor makes default, and the mortgagee becomes entitled to the possession after the levy, the latter may claim the property and terminate the sheriff’s possession.—McGehee v. Carpenter, 4 Ala. 475, and cases cited.
6. If, however, the levy was properly made, and the mortgagee acquires a subsequent right to possession, by the mortga[730]*730gor’s default of payment, and asserts li5s claim under the statute,, this intervening claim cannot prevent a condemnation of tbe property, if tbe mortgagor before tbe trial wipes out the default by the full discharge of tbe mortgage debt. Tbe full satisfaction of the demand which constituted tbe lien destroyed the lien, and left the claim without foundation.
7. But it is insisted that Johnson’s title must be regarded as absolute, since tbe bond which he held for title to the Brig, and which he transferred to his securities, who are the claimants,, was never recorded ; that if it was designed to operate as a. mortgage, it should have been recorded as the statutes require' deeds of trust and mortgages. In reply to this, we feel no hesitation in holding that' the statutes above referred to were never designed to apply to the transfer of vessels for the navigation of' the ocean. These transfers are subject to marine regulations of a different character; and the object of the statutes, which was to furnish evidence of title, and give notice to creditors and purchasers, could not be effected by registering the trust deed in any particular county, since the vessel continually changes her locality, as the interest or caprice of her owners may suggest. The evidence of title is to be looked for in the ship’s papers, and her registration according to the laws of Congress. Possession and acts of ownership will,, in this as in other cases of property, be presumptive evidence of ownership, (4 East. 130, cited 3-Kent’s Com. 130,) but are not conclusive..
8. It is insisted, further, that the vessel could not pass from Heim & Le Baron to Johnson without a bill of sale, so as to vest in him a title subject to be seized on attachment. The rule generally recognized seems to hold that a writing is required to pass the title to a ship. We are not disposed to gainsay this rule, as to the evidence of ownership required to determine the national character of the vessel; but as between the vendor and purchaser, a parol sale consummated by the delivery of the ship will be good.—3 Kent, 130; 16 Mass. 336; 7 Johns. 308; 16 Pick. 406; 12 Mass. 57; 18 Johns. 169.
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GHIDTON, Ji
1. The first exception, ,on the part of the claimants, was to-the admission in evidence.of the declarations of Beverly; .made to the officer who levied the attachment upon the ■ Brig,.at,the time.of the levy. Said Beverly, upon being asked: by tha-officer. if:'the captain was on board, replied, “that the• captaimwas -notion ¡hoard, ¡but. that.he (Beverly) was mate of the [728]*728Brig; that the Brig belonged to George II. Johnson; that 'he held possession of the Brig for said Johnson, and was employed by Aim.” The bill of exceptions states that <c the claimants moved the court to exclude this evidence from the jury; but the motion was overruled.”
The authorities, generally, agree that the declarations of one in possession of either real or personal property, explanatory of the possession, may be received as evidence, since they constitute part of the res gestas; but declarations explanatory of past transactions, or as to the mode in which title was acquired or is held by a third person, not explanatory of the possession, are disallowed. According to this rule, a portion of the proof which the court was asked to exclude was indisputably legal, and if it were conceded that other portions were not, still as the objection applied to the whole, the court properly overruled the motion to exclude it.- It is settled, that it is not the duty of the court, in such case, to distinguish and separate that portion which is legal from that which is not; but it may refuse such general motion to exclude the whole.—Borland v. Walker et al., 7 Ala. 269; Donnell v. Jones, 13 ib. 490. It is unnecessary, therefore, for us to criticise this evidence and to decide what portion, if any of it, was illegal.
2. There was no error in allowing the defendant in error to prove the directions given by Johnson to the captain of the vessel, under which the latter acted. These directions, coupled with the acts in compliance with them, were parts of the thing done, and explanatory of it, and tended to show the control and management of the vessel by Johnson before the levy, and to raise the presumption of ownership.
3. But we are unable to perceive what legitimate influence the proof of directions given by him after the levy was made, and the vessel, had been replevied by the interposition of the claim, could have upon the matter in issue. The claimants, after they had entered into bond for the trial of the right of property, and the Brig had been delivered to them, had the right to place her in the possession of any person they pleased. Tire vessel was in the custody of the law. The claimants and their sureties on the delivery bond were bound for her forthcoming, in the event of a judgment of condemnation, and nothing said by the defendant in execution, or done by him, except in the [729]*729^presence of the claimants, and by their assentj express or implied, •could properly be received to invalidate their claim. They had ■the right to continue the vessel in her accustomed employment, ;and under the same direction to which «he had formerly been ■subjected, without being put to the alternative of explaining the ■circumstances of the -subsequent possession, or halving-an inference drawn from it prejudicial to them. We are not prepared to say, however, that under a proper issue, this eviderice, if offered in connection with proof'that the. claimants held a lien merely for their indemnity, which lien had been discharged by •Johnson since the claim was put inj would have been irrelevant-. Such acts of ownership would tend to show the discharge of the lien, and that the property had re-vested in Johnson.
4. As the plaintiff in the attachment seeks to condemn the interest of Johnson in the vessel, it is very clear that his (Johnson’s) declarations or admissions, while he was in possession of the Brig, made after his purchase and before .the ■ levy, in disparagement of his title or interest, are proper testimony-. — 1 Greenl. Ev., § 190.
5. The reasons for the exclusion off the bill of sale from Heim ■to Fontaine & Dent are not set forth; but we take it for granted the court was of opinion, that the same, having been executed subsequent to the levy of the attachment, could not be received to affect the levy. Had the issue been properly made, the exclusion of this instrument would have been clearly erroneous. But the question being narrowed down by mispleading, to the liability of the Brig to the attachment ut the time of the levy, the bill of sale, dated after the levy was made, was prima facie irrelevant, as it was outside of the issue. But the issue was clearly immaterial. Conceding that Johnson was the mortgagor, and that at the time the levy was made the law day had not arrived, when the mortgagee was entitled to the possession, then the interest of the mortgagor in possession was subject to levy; but it by means follows that the property must be condemned, for when the mortgagor makes default, and the mortgagee becomes entitled to the possession after the levy, the latter may claim the property and terminate the sheriff’s possession.—McGehee v. Carpenter, 4 Ala. 475, and cases cited.
6. If, however, the levy was properly made, and the mortgagee acquires a subsequent right to possession, by the mortga[730]*730gor’s default of payment, and asserts li5s claim under the statute,, this intervening claim cannot prevent a condemnation of tbe property, if tbe mortgagor before tbe trial wipes out the default by the full discharge of tbe mortgage debt. Tbe full satisfaction of the demand which constituted tbe lien destroyed the lien, and left the claim without foundation.
7. But it is insisted that Johnson’s title must be regarded as absolute, since tbe bond which he held for title to the Brig, and which he transferred to his securities, who are the claimants,, was never recorded ; that if it was designed to operate as a. mortgage, it should have been recorded as the statutes require' deeds of trust and mortgages. In reply to this, we feel no hesitation in holding that' the statutes above referred to were never designed to apply to the transfer of vessels for the navigation of' the ocean. These transfers are subject to marine regulations of a different character; and the object of the statutes, which was to furnish evidence of title, and give notice to creditors and purchasers, could not be effected by registering the trust deed in any particular county, since the vessel continually changes her locality, as the interest or caprice of her owners may suggest. The evidence of title is to be looked for in the ship’s papers, and her registration according to the laws of Congress. Possession and acts of ownership will,, in this as in other cases of property, be presumptive evidence of ownership, (4 East. 130, cited 3-Kent’s Com. 130,) but are not conclusive..
8. It is insisted, further, that the vessel could not pass from Heim & Le Baron to Johnson without a bill of sale, so as to vest in him a title subject to be seized on attachment. The rule generally recognized seems to hold that a writing is required to pass the title to a ship. We are not disposed to gainsay this rule, as to the evidence of ownership required to determine the national character of the vessel; but as between the vendor and purchaser, a parol sale consummated by the delivery of the ship will be good.—3 Kent, 130; 16 Mass. 336; 7 Johns. 308; 16 Pick. 406; 12 Mass. 57; 18 Johns. 169. Assuming the facts stated in the record, respecting the purchase by Johnson of Heirn & Le Baron, to be true, let us suppose that Johnson had paid them in full for the vessel before it was levied on, which would of course have discharged their lien on the ship for the purchase money, could they have sued Johnson, notwithstanding. [731]*731and have recovered the vessel from him 7 He has purchased and paid for it, and the same has been delivered to him under the contract. Now although he has no bill of sale, we think tho want of this written evidence, as between the parties, would be disregarded by the court, and it would be considered that Johnson was the owner, although he wanted the usual, but not the indispensable evidence of ownership, so far as the defence ’of such action would be concerned. Tho fact that the bond was given, showing the vendor’s lien-, which lien had been discharged, would make no difference. The same result would follow, if the sureties of Johnson paid the purchase money, which the latter has since fully repaid to them. Tho fact that the bill of sale was given to tho claimants, while a lien in their favor existed, does not wTork a divestiture of Johnson’s title, if he has discharged the debt which the bill of sale was given to secure. There was proof of such payment by him, but the caso in tho court below ■was not made to turn on that question. Wo are not allowed, in the present condition of the record, to treat such payment as a fact found by the jury, and consequently cannot take it for granted, so as to prevent a reversal, upon the ground that the errors worked no injury; non constat, the jury may find otherwise.
This statement of our views, without further comment, will enable the court below properly to dispose of the case, after allowing the issue to be reformed, so as to correspond with the directions in The Planters’ & Merchants’ Bank v. Willis & Co., 5 Ala. 770.
Let the judgment be reversed and the cause remanded.