
    N. K. Butler & Co. vs. Luther Roll.
    
      Trover, Verdict for Defendant, and Motion for a New Trial.
    
    1st, Between purchasers of personal property, the elder title must prevail, unless it be infected with fraud.
    2nd. The possession of the seller after the sale, is not, of itself, evidence of fraud ; , and that he had a right to redeem the property, is a circumstance to be considered by the Jury, in explanation of the possession.
    In this ease, Morrow made a bill of sale of a negro, sued for, to the defendant, Roll, dated on the 21st July, 1836, and at the same time Morrow signed a non-descript paper, stating, an agreement, that if he paid R. a certain amount, then Roll was to let him have the negro back, but this agreement was signed only by Morrow: and no proof was made of a delivery from Morrow to Roll, except the delivery of the bill of sale, and Roll, sometime afterwards, had the boy attached and sold, and purchased him at the Sheriff’s sale, after the plaintiff’s title accrued, on the 26th July, 1836 : five days after this sale to Roll) Morrow sold the boy to the plaintiff and executed a bill of sale to Butler, and delivered the boy to Butler, and Butler immediately hired the boy to Morrow, and delivered him back to Morrow. Roll got, and kept possession of the boy sometime after, and retains possession of him. And the above action was brought to recover the boy. And the Jury, after hearing the evidence, found a verdict for the defendant.
    The plaintiffs now move for a new trial :
    1st, That there was no delivery of the property by Morrow to Roll, and that Morrow continued in possession.
    2nd. That the boy was delivered to the plaintiff, at the execution of the bill of sale by Morrow to him, and that the plaintiffs’ title was complete.
    And it is contended, by Gould & Gumming, that a new trial should be granted, as the verdict is contrary to the evidence, as the want of delivery was a fraud on the last purchaser.
    Ms. Mim-eb contends,
    that the delivery of the bill of sale, by Morrow to Roll, amounts (in Law) to implied delivery of the thing sold; and this, added to the written memorandum signed by Morrow, shewing that he was to have the boy back from Roll, by paying a certain sum of money, sufficiently accounts for R.’s want of possession — and that possession not following and accompanying the deed» is not, per se, a fraud, even against creditors, if the same be accounted for to the satisfaction of the Jury. But this is a case between purchasers, and therefore the one who has the elder title will hold the property; and he quotes the following cases : — 17 Mass. R. 110. 1 T. R. 205. Butter's N. P. 258. Long, on Sales, 118. Also, 2 Piclc’g. R. 607.
   The Court charged the Jury, that this is a case between purchasers, and that the delivery of the bill of sale was an implied delivery of the property, and as between purchasers, the elder title should prevail, unless they believed the first title was fraudulent. If so, they should find for the plaintiff: but if they believed, that the elder title was not fraudulent, then to find for the defendant; and these were questions for the Jury, and they have passed upon them.

The Court sees no ground on which the verdict should be set aside. A new trial is therefore refused.

JOHN SHLY, Judge

Superior Courts, Middle District, Georgia.  