This was a trial of the right of property to six bales of cotton, levied on by the sheriff, at the instance of the plaintiffs in error, as the property of John M. Mock, and claimed under the statute by Burt, the defendant in error.
The claimant offered to read to the jury a deed of gift, made by said Mock to one Elias Bonnell, trustee, of certain slaves and other property in trust, for the use and benefit of Matilda Mock, wife of the donor, and for the support and future maintenance of her and her children. The deed provides that the said Matilda shall at no time be deprived of the use of the said property during her natural life; and it further provides for a divisiou of said property among the children, in certain events, after her death. John M. Mock reserved to himself the right to direct the slaves in the mode and manner of their employment and labor, under the superintendence of said trustee. The cotton claimed was the produce of the labor of said slaves, and the deed was offered by claimant, who proposed showing that the cotton was sold by Mock, in accordance with its provisions, and purchased by him. This deed was clearly relevant, and the motion to exclude it i?i limine was very properly overruled. If the plaintiffs in error desired to raise any question as to its legal effect, they should have asked of the court an appropriate charge involving its sufficiency. This view is not in 'conflict with Myers v. Peak’s Adm’r, 2 Ala. 648; for in that case .the bill of safe, which was really a gift, was admitted in proof, and charges' were asked involving its legal effect.
*205The deed was not introduced to prove title in a third party, but for the purpose of showing that the cotton being the produce of the labor of the slaves, which were trust property, the claimant, who had purchased it in accordance with the provisions of the trust, must be protected.
2. The declarations of Mock, in giving instructions to his son with respect to the delivery of the cotton, we think were properly admitted as part of the res gesta. The cotton was in possession of Mock, and his declarations were competent to show how he held, namely, not in his own right, but that it belonged to the claimant. This view harmonises with all the cases on the subject, and especially with Webster vs. Smith, 10 Ala. 430.
3. The act of Chambliss, who had possession of the cotton, in marking it with the initials of Burt’s name, we think, might properly go in evidence for similar reasons. It proved, or tended to show, that he held it as the property of Burt, and to show that Burt, at the time of the levy, held possession by his bailee.
4. The bill of exceptions does not contain sufficient evidence to show whether the charge involving the legal sufficiency of the deed was or was not properly refused. If the possession of the property actually accompanied the deed, and the dominion over it was given to the trustee for the purpose of executing the trust, the deed would come within the saving of'the statute. But whether this was so or not, does not appear. The charge assumed that the deed was fraudulent because not proved or acknowledged. This may or may not be correct, as the donor had actually parted with, or retained the possession. But the plaintiff must affirmatively show error and injury.
The charge given presented the case in the most favorable light for the plaintiffs in error. Our conclusion is that there is no error in the record, and the judgment must be affirmed.