Creagh v. Savage

CHILTON, J. This was the trial of the right of property. On the trial in the circuit court, the plaintiff introduced evidence tending to show that the property in controversy both [457] before and at the time of the levy of his execution, was in possession of Patterson, the defendant in the fi. fa. The claimant, Savage, then introduced evidence tending to prove that while he was coroner of Clarke county, certain executions against said Patterson came into his hands. That he levied upon and sold, as coroner, the effects of said Patterson, and one Ezell became the purchaser, at the instance, and for the benefit of Savage. That a bill of sale was executed for the property by Savage to Ezell, who afterwards re-conveyed to Savage. The claimant, notwithstanding the plaintiff’s objection, was allowed to prove and read to the jury an instrument in writing signed by said Patterson, by which the latter acknowledged he had received from Savage, or, rather, that Savage had left in his possession certain negro slaves, and other property, embracing cattle, horses, hogs, sheep and household furniture, which were to remain with Patterson until the crop should be gathered, which Patterson undertook to gather for Savage, after which, or by the first of January then next, the property was to be delivered up to Savage. The plaintiff in execution also excepted to the reading of a note for $500, which Patterson had executed to Savage, in consideration of the hire of the slaves, plantation, &c. for the year next succeeding the negotiation; and also, to the reading of the bill of sale from Savage to Ezell, and from the latter to Savage. The court charged the jury, that if the property was sold at public sale under execution, subsequent possession by the defendant in execution of said property, was not even prima facie evidence of fraud, so as to subject it to the debts of the defendant in execution. This charge was also excepted to, and the assignments of error present for revision the legality of the evidence admitted, and propriety of the charge. 1. In Hardy v. Gascoigne et al. 6 Porter’s Rep. 447, the court say, “ if the execution be admissible, we cannot conceive why the sheriff’s return should be excluded ,• for when made in pursuance of law,.it becomes matter of record, and as such, is clearly evidence. The return is a response to the execution. The law requires the officer to make it, and [458] holds him and his sureties liable if he fail to make it conform to the truth of the case. When the execution is returned by the sheriff, it becomes a part of the record of the court, and is admissible in all cases where the record itself can be used, (Harwell v. Martin, Pleasants & Co. 6 Ala. R. 587,) and we see no reason 'why the return of the officer should not be evidence in this case, as showing the levy and sale of the property in suit, and consequent satisfaction of the execution.— See Smith v. Leavitts, 10 Ala. 92 ; s. c. 13 Ib. 2. In Creagh and Forwood v. Savage, 9 Ala. 959, it was held, that a purchase by a sheriff at his own sale was not absolutely void, but voidable merely, and that creditors could have relief in equity against such sale. We are not disposed to disturb this decision, which seems to have been well considered, and under which titles to property may have vested, which it would be unjust to vacate. The law being thus settled, it follows, that the sheriff or coroner may do by another what they are permitted to do by themselves. The conclusion results, that the purchase by Ezell on behalf of the coroner, not being void, but voidable only, the evidence of the purchase, which was the return on they?, fa. and the bills of sale were properly allowed to go to the jury. They were executed before the institution of these proceedings, and constitute links in the claimant’s chain of title. All we need decide is, the proof was admissible; for no charge was asked which involved its effect or legal sufficiency. 3. The notes for the hiring, made anterior to the institution of this proceeding, were relevant testimony. It w*as certainly competent, in order to rebut any presumption of fraud for the claimant to prove that he had hired the property in dispute to the defendant in execution. Andrews & Bros. v. Jones, 10 Ala. 400. The proof certainly amounted to a declaration on the part of the defendant in the execution, while in the possession of the property, that it belonged to the claimant, and such proof was held-admissible in the case of Webster v. Smith, 10 Ala. Rep. 429, notwithstanding the statute excluding the defendant in the execution from being a witness. 4. With respect to the charge, we are not prepared to say, [459] that it is erroneous. It cannot be denied, that in an absolute sale of personal chattels, the retention of possession by the vendor is prima facie evidence of fraud, but it is held, that the notoriety and publicity of sales under execution, &c. exempts them from the application of the rule. The law was expressly so ruled in Simerson v. The Branch Bank &c. at Decatur, 12 Ala. Rep. 205, where it is said, “ in the case of a public sale of goods, the purchaser may leave them with the former owner upon a contract with him, or from mere kindness or benevolence, and if this conduct is bona fide, and is not intended to delay, hinder or defraud creditors, he will hold the property against the other creditors of the debt- or.” And the doctrine seems to rest upon many authorities: 2 Stark. Ev. 619; Kidd v. Rawlinson, 2 B. & P. 59; Watkins v. Birch, 4 Taunt. 823; Cole v. Davis, 1 Ld. Raym. 724; Joseph v. Ingraham, 8 Taunt. 338; Latimer v. Barton, 4 B. & C. 652; Bank of Alabama v. McDade, 4 Por. R. 266; Cawthorn v. McGraw, 9 Ala. R. 524; Abney v. Kingsland, 10 Ala. 363; Anderson v. Hooks, 11 Ala. Rep. 958. The charge was correct as an abstract proposition of law, and was not calculated to mislead the jury. If the plaintiff desired to have the opinion of the court as to the application of the rule to any particular feature, in the cause, she should have asked for appropriate charges, and cannot be heard to say the charge was too general when applied to the facts in proof. See Knox v. Reeves, Battle & Co. at the present term. Let the judgment be affirmed.