Griffin v. Branch Bank at Huntsville. ately after the decree; and the only other, within ten days after the decree, by an act before a notary. [1 Brown Civ. & Ad. 494; 2 Ib. 435.] The latter mode is said, by Judge Story, never to have obtained in the courts of this country. The course of practice which seems to have been adopted,. in the few cases which, under this statute, have found their way to this court, is the only appropriate one, in the absence of any specific rule, inasmuch as we have no warrant from from the statute to recognize the act of the Register, in allowing the appeal, aud the Chancellor below might not recognize his power to do so. Having thus ascertained, that the appeal under this statute must be taken before the Chancellor, when sitting in term, it follows the same course must be pursued when the motion is heard in vacation. The result of our investigation is, that as the appeal is improperly taken, the motion asked for must be denied. It also results, that the appeal will be dismissed, if a motion is made for that purpose. 4. But if the appeal had been properly taken, its effect would not be to revive or reinstate the injunction. A similar statute, in many respects, is in force in New York, and under that, the constant practice is, to consider the injunction as entirely dissolved, notwithstanding an appeal is taken under the act. [Hunt v. Mayor &c. of Albany, 3 Paige, 381; Graves v. Maguire, 6 Ib. 379.] The course there, is to apply to the Chancellor for a temporary injunction, pending the appeal, if the case is of an extraordinary nature, or its justice requires such action. [See cases before cited.] In our own court, when the appeal is taken from the final decree, and bond given to supersede, an injunction is not revived. [Boren v. Chisholm, 3 Ala. Rep. 513; Garrow v. Carpenter, 4 S. & P. 336.] It will be evident, the same rule must obtain with respect to interlocutory decrees, when it is considered that no bond, under the existing laws, will secure the party against whom the appeal is taken, in the event of an affirmance, against the damages which may result to him, from not being permitted to proceed according to his right. Motion refused. Gary v. Terrill. GARY v. TERRILL. 1. The declarations of one in possession of a slave, that it belongs to him, is competent testimony, in a suit where the slave was claimed by another. The weight it is entitled to, is a question for the jury, under all the circumstances of the case. Error to the County Court of Sumter. DETINUE by the plaintiff in error, for a slave, against the defendant, who claimed title under a sale by the sheriff, who sold the slave by virtue of an execution against Thomas P. Terrill. From the bill of exceptions, it appeared that Thomas P. Terrill had been in the possession of the slave, from the 1st March, 1837, to about the 1st January, 1843; that he is the son of the defendant, and resided in this State, and that the defendant resided in South Carolina. That in 1836, the son went to South Carolina, and as an inducement to his mother to remove to Alabama, advanced to her about $570, to pay a debt she owed there, and in payment of the money so advanced, the defendant agreed to let her son have the use of the slave, until by his reasonable hire, the debt should be paid. That under this agreement the money was advanced, and the defendant removed with him to Alabama, about the 24th of December, 1836, and remained with him until the 1st March, 1837, when she removed to another place, and the slave went into possession of the son. That the reasonable hire of the slave, from the 1st March, 1837, to January, 1843, would have paid the money so advanced. That a few days. before the levy, the slave went into the possession of the defendant, and at and before the sale it was forbid. Plaintiff offered to prove the declaration of Thomas P. Terrell, while in possession of the slave, that it belonged to him, which the court refused to permit to go before the jury, unless made in the presence of the defendant, to which the plaintiff excepted. Gary v. Terrill. The plaintiff moved the court to charge, that if Thos. P. Terrill was in the unbroken possession of the slave for three years, and no written evidence of the contract duly recorded, the slave was subject to be sold for his debts; which charge the court refused, and charged, that if they believed from the evidence, that he kept possession of the slave upon a contract of hire, and upon a valuable and bona fide consideration, and not upon any gift or loan, three years uninterrupted possession of the slave, would not make him liable to the payment of his debts; to which the plaintiff excepted. These matters are now assigned as error. INGE, for the plaintiff in error, cited 6 Ala. Rep. 622; 7 Id. 379; 4 Porter, 27; 1 S. & P. 220. A. GRAHAM, of Greene, contra. ORMOND, J.-The court erred, in excluding the evidence of the declarations of Thomas P. Terrill, in relation to his title, whilst in possession of the slave. This point has been frequently decided by this court. [Oden v. Stubblefield, 4 Ala. Rep. 40; Garey v. Frost & Dickinson, 5 Id. 636; McBride and wife v. Thompson, 8 Id. 650.] In the case last cited, it was held, that it was allowable to prove the declarations of one in possession of personal property, to establish whether he held it in his own right, or under another, but that his declarations would not be evidence to prove the consideration paid for it. Here it was proposed to prove, that T. P. Terrill, whilst in possession of the property, claimed it as his own. The competency of such evidence, does not depend on the fact, that the declarations are made in the hearing of the opposite party, but it is because it relates to, and is connected with the possession, and is therefore a part of the res gesta. It is therefore competent testimony; what weight it is entitled to, is a question for the jury, considering the declarations so made, in connection with the other facts in the cause. For the error of the court in excluding this evidence, the judgment must be reversed, and the cause remanded. Sinith & Co. v. Zurcher, use, &c. SMITH & Co. v. ZURCHER, USE, &C. 1. A mortgage of personal property, for the purpose of securing a debt, is embraced by the act of 1828, "More effectually to prevent frauds, and fraudulent conveyances, and for other purposes," and will be operative against "creditors and subsequent purchasers," who have notice of its existence, although it was not registered within the time prescribed. 2. Where one purchases while a person other than the vendor is in possession, under a claim of title, or as an incumbrancer, this is sufficient to put the vendee upon inquiry, and in legal effect will be equivalent to notice of an incumbrance. Writ of Error to the County Court of Mobile. A verdict THIS was a proceeding commenced before a justice of the peace, to try the right to a female slave, named Penelope, which had been levied on as the property of Duncan Wilkinson, to satisfy an execution at the suit of the defendants in error, against D. Wilkinson & Co., and to whom the plaintiffs in error asserted a claim pursuant to the statute. and judgment were rendered before the justice in favor of the claimant, and the cause thence removed to the County Court by appeal, where the slave was adjudged liable to the execution, and a judgment rendered against the claimant for costs. On the trial, the claimants excepted to the ruling of the court. From the bill of exceptions it appears, that the claimants offered in evidence a mortgage under seal, bearing date the 17th June, 1843, executed by the defendants in execution to the claimants, upon the slave in question; and proposed to prove, that the same was given in consideration of two hundred and thirty dollars and upwards, advanced at that time by the claimants to the defendant; and the slave was then delivered to the mortgagees. The plaintiffs execution was levied on the 11th April, 1844. It was ruled by the court, that the mortgage was inadmissible, because it was not recorded; whereupon the claimants excepted, &c. Smith & Co. v. Zurcher, use, &c. E. S. DARGAN, for the plaintiff in error. The mortgage, though not recorded, was good against the plaintiff, if he had notice before his execution was issued. [4 Hals. R. 193; 1 Pick. R. 164; 1 Metc. R. 214.] The mortgaged property was delivered to the mortgagee; this is a fact, the legal effect of which was equivalent to express notice. BLOCKER, for defendant in error. COLLIER, C. J.-It is enacted, by the 1st section of the act of 1828, More effectually to prevent frauds and fraudulent conveyances, and for other purposes," (Clay's Dig. 255, 5,) that "all deeds and conveyances of personal property, in trust, to secure any debt or debts, shall be recorded in the office of the clerk of the County Court, wherein the person making such deed or conveyance shall reside, within thirty days, or else the same shall be void against creditors and subsequent purchasers, without notice; and if any such conveyance shall be made of real estate, the same shall be recorded in the office of the clerk of the county wherein the estate may be situate, within sixty days, or the same shall be void against creditors and subsequent purchasers, without notice." In Cummings & Cooper v. McCullough's adm'r, 5 Ala. R. 324, it was held, that a deed by which property was assigned to a third person, in trust for the payment of debts generally, was not only within the mischief, but within the letter of this enactment-being a conveyance to secure debts. Where, instead of formally interposing a trustee between the grantor and the beneficiaries, a conveyance is made by the debtor to his creditor, directly, for the purpose of securing the payment of a debt, it is within the act, just as much as if it was, in technical language, a deed of trust: for if this be not so, then we have no statute which makes the registration of a mortgage necessary, as against creditors. [Magee v. Carpenter, 4 Ala. Rep. 469.] If the act in question be considered a statute of frauds, instead of an act to provide for the registration of deeds and conveyances, (Cummings & Cooper v. McCullough's adm'r. supra,) a notice of its existence, if not recorded, would be unavailing to secure to the mortgagee the benefit of his secu |