Crawford v. Burton

"Woodward, J.- — It is not within the limits of legal supposition, that the court should order a non-suit, after a verdict for the defendant; and therefore, considering the testimony of the bill of exceptions, and the, other circumstances concurring with it, we incline to regard the entry relating to the verdict, as an error of the clerk, and will view the case accordingly. It was erroneous to direct the non-suit. There was much for the jury to inquire into, although the bill of sale should be inadmissible. It does not appear why this instrument was rejected. It may have been because the justice does not certify of what county he is an official, as is indicated in plaintiff’s argument-; or it may have been because the [479] certificate does not state that the vendor was personally known to him. It is defective in both these respects, if viewed with strictness. But this was not the end of the matter. It is true that the Code, (section 1193), enacts that a sale of personalty, when the vendor retains actual possession, shall not be valid against creditors, unless a written instrument conveying' the same, be executed, acknowledged like conveyances of real estate, and filed for record; but two thoughts are suggested upon this point. In the first place, section 1193, has the qualification, “ where the vendor retains the actual possession.” There was evidence that he went out of possession, and this should have been left to the jury, under proper instructions, together with the fact of his going into the store again, in the employment of the plaintiff. In the next place, section 1211, relating to the recording of instruments affecting real estate, contains the exception of the case of notice to the third person. As the bill of sale is to be treated like a conveyance of real estate, in respect to the acknowledgment and recording, notice would, probably, iu like manner, take the former out of the statute; and then the papers might be of effect, though not regularly acknowledged. Anri there was evidence tending to show such notice. Miller v. Bryan, 3 Iowa, 58. But farther, section 1193, relating to bills of sale, contains a like saving clause. It woirld seem that the court proceeded upon the ground, that if the bill of sale was such that it was inadmissible as evidence, then there was no valid sale. But, as we have seen, a sale without a written instrument, would be good, if the vendor did not remain in actual, possession; and also, the instrument of sale would be good, notwithstanding a defective acknowledgment, if the creditor had notice of the sale. And in either of these cases, the paper would be admissible as evidence of a sale. The case should have been permitted to go to the jury upon the facts, the court instructing upon the law as they deemed right. If the trial by the jury proceeded until they returned a verdict, still there was error in rejecting [480] tlie bill of sale wholly, when we take into view the evi. clence of notice to the creditor then attaching. The judgment is reversed, and a procedendo awarded.