R. W. WALKER, J.
1. There was'no error-in allowing the deed from Gregory to the.„plaintiffs to be read in evidence. The evidence in relation to its execution and delivery was, at least, sufficient to let the instrument go to the jury. Whether there was in fact a valid delivery, depended on the intention of the grantor that the deed should or should not be considered as executed ; and of that intention "the. jury were to judge, under the charge of the court.—McLure v. Colclough, 17 Ala. 96; Morris v. Varner, 32 Ala. 499.
[2.] There is nothing in the second objection made to the introduction of the deed in evidence. It is clearly a deed, not a will.
[3.] The written agreement between Gregory and Mary Walker does not appear, upon its face, to have any -connection with the subject-matter of this suit,-nor-with the deed from Gregory to the plaintiffs. It was-made between different parties, for a different purpose, upon a different consideration, and at a different time. 'Considered by itself, therefore, it was obviously irrelevant. .Nor was it admissible, when offered in connection with the other evidence referred to in the bill of exceptions, for -the .purpose of showing that the deed to the plaintiffs was fraudulently obtained. We are unable to perceive that'this agreement, either by itself, or in connection with - the other evidence [34]*34alluded to-, could have tended in the least, to prove fraud in the execution of the déed under which the plaintii&'claimed title. And it was well settled that, at law, and as between parties occupying the relation th-at-the present parties sustain to each other, no kind of fraud can be shown, except fraud in the execution, of the deed, — such as, that it was falsely read to the grantor, or the like. — Thompson v. Drake, 32 Ala. 99 ; Morris v. Harvey, 4 Ala. 300.
[4.] It had already been proved, (and the fact was not deuied or controverted by the plaintiffs,) that Polly Walker was living at Gregory's house, and, in his employment, on the 10th of August, 1849. This being so, the exclusion of the agreement. between Gregory and- Mrs. Walker, when offered for.,.the purpose of proving the same fact, was not a reversible-error. , The exclusion of unnecessary or redundant evidence,- is error withou t injury.
[5.] The declarations of Gregory, the grantor, were properly excluded ; ,.for the reason, that they were not shown to have been made before the execution of the deed to the plaintiffs. . A gift'-eannot be affected by declarations of the donor, made after the gift was consummated. — Olds v. Powell, 7 Ala. 652 Mobley v. Barnes, 26. Ala. 71.8.
[6.] Some portions of..each of the other answers of Benson, which were excluded by .the-court, were clearly irrelevant, ■ or illegal.. For--example, the statements, that the old lady (Mrs. Gregory)was deranged” ;■ “that her insanity became-, worse because of the conduct of her husband and Mary Walker”; “that Polly Walker lived in adultery with old-man Gregory,’’-^weremere conclusions of the witness — deductions from facts, not the facts themselves. Walker v. Walker, 34 Ala. 473; Donnell v. Jones, 13 Ala. 510 ; Benje v. Creagh, 21 Ala. 156. There. Was, therefore, no error in excluding-these answers j for, when evidence is offered, of which a,portion is illegal, the court may reject all, and is not bound,to separate the legal from the illegal.
Judgment affirmed.
A. J. Walkee, C. J., having been ;of counsel, not sitting-. Free access — add to your briefcase to read the full text and ask questions with AI