Collin County Grain Co. v. Andrews

Wood, J., (after stating the facts). The court, in its instructions, under the pleadings and the evidence, correctly confined the issue to whether or not the appellant was the owner and entitled to the possession of the property in controversy. Appellant had no right to maintain this suit unless it was the owner of the car through its alleged purchase of the same on August 7, 1910, and the court, in its instructions,, placed the burden upon the appellant to show that it was the owner of the property at the time the appellee commission company took possession thereof under the attachment. We find no error in the rulings of the court in the granting or refusing of prayers for instructions. The court erred in permitting the letters purporting to have been written by Brown Crain Company after the alleged sale of the car of oats in controversy to the appellant. These letters of themselves were not competent, in the absence- of other evidence of fraud to show that the Brown Crain Company and the appellant were attempting, by the alleged sale, to defraud the Couch Commission Company. Aside from these letters, there was no proof of fraud. “Acts or declarations of a grantor made after a conveyance or sale by him, and after he has parted with possession to his grantee, and in the absence and without the knowledge of the grantee, can not be received in evidence against the grantee for the purpose of affecting or impeaching the conveyance or sale, or of defeating the title on the ground that the transaction was in fraud of creditors.” Enc. of Ev., vol. 6, p. 153. See, also, Cox Wholesale Grocery Co. v. National Bank of Pittsburg, 107 Ark. 601, 156 S. W. 187. In view of a new trial, it is proper to state that since the appellees, in their answer, alleged that the sale by the Brown Crain Company to appellant was fraudulent, the burden on the issue of fraud is on the appellees. For the error in admitting the incompetent evidence, the judgment is reversed and the cause Is remanded for a new trial.