
    Griswold, Respondent, vs. Nichols, Appellant.
    
      November 18
    
    December 12, 1905.
    
    
      Evidence: Declarations: Character of possession: Res gestee: Re iteration of testimony: Sale of chattels without delivery: Presumption of fraud: Rebuttal: Appeal: Bill of exceptions.
    
    1. When the character of a party’s possession of property, either real or personal, is in question and material to the litigation, the statements made hy such party while in possession, if apparently made in good faith, are admissible in evidence on his behalf upon the ground that the possession of the property is a continuous act and that the declarations accompanying such possession are in fact a part of the act of possession and hence a part of the res gestee.
    
    
      2. If the declarations in such case assert facts with reference to the title, such as the purchase of the property of another, they are not evidence of such facts, hut only evidence so far as they go to the extent or character of the title claimed.
    3. Refusal to allow on cross-examination a question calling merely for a reiteration of testimony already given hy the witness, was, not error.
    4. The presumption of fraud arising under sec. 2310, Stats. 1898, in> case of a sale of chattels without immediate delivery and change of possession, is rebutted hy proof that a full and adequate consideration was paid.
    5. Error assigned upon the denial of a motion for a new trial on the grounds of misconduct of a juror and newly-discovered evidence cannot he considered bn appeal where the affidavits used upon the motion are not incorporated into the bill of exceptions nor identified in any way.
    Appeal from a judgment of the circuit court for Saule county: E. Ray Stevehs, Circuit Judge.
    
      Affirmed.
    
    
      For tbe appellant there was a brief by Bentley & Kelley, and oral argument by K. B. Bentley.
    
    To tbe point that plaintiff’s declarations as to tbe ownership' of tbe horses were not admissible in bis favor, they cited 1 Jones, Evidence, § 236; 2 id.; §§ 300, 354; Garroll v. Frank, 28 Mo. App. 69; Stone v. O'Brien,, Y Oolo. 458, 460; 24 Am. & Eng. Eney. of Law (2d!ed.) 690, 691; Knapp v. Schneider, 24 Wis. Y0, Y3; Gohn vi\ Heimbauch, 86 Wis. 1Y6, 1Y9; Sweet v. Wright, 5Y Iowa, 5ljo, 10 N. W. 8Y0.
    
      Daniel Boggles, for tbe respondent.
   WiNSlow, J.

This is an action of replevin to recover certain bar furniture and two horses seized by tbe defendant as sheriff upon an execution against tbe plaintiff’s son. Tbe case was here on a previous appeal (llY Wis. 26Y, 94 N. W. S3), and thé nature of tbe issues and tbe leading facts will be found stated in tbe statement of facts there made. Tbe case has been again tried before a jury and a judgment rendered for tbe plaintiff, from which tbe defendant appeals. Tbe errors claimed which are deemed of sufficient importance to require discbssion will be considered in their order.

Upon 'the trial one Burch, a witness for tbe plaintiff, was allowed to testify, against objection, that be bad a conversation wjth tbe plaintiff as to tbe ownership of tbe horses after their ailleged transfer to tbe plaintiff and before tbe commencement |of tbe action, and while they were in plaintiff’s manual possession, in which tbe witness asked tbe plaintiff 'if they were bis horses, and plaintiff said “Tes,” and tbe witness asked tbe plaintiff, “What in tbe world did you want to get some; more horses for ?” and tbe plaintiff replied: “It is a ground-bog sale. This and some saloon fixtures that I am going after is all I got to show” — he stated tbe sum of money invested in Chicago. Tbe defendant’s contention is that these statements were purely self-serving declarations and hence inadmissible, and this is tbe question first to be considered. The plaintiff claimed to have obtained the horses from the firm of which his son was a member in payment of a preexisting firm debt. The defendant claimed that the horses were the property of the son and not of the firm, and that the son had made a pretended transfer to the plaintiff which was fraudulent and void as to the creditors of the son. The evi•dence tended to show that the horses were shipped by railroad from Chicago to the plaintiff and were received by him •and kept in his barn for some time before the seizure, but it also showed that the plaintiff’s son lived with his father during that time and assisted in attempting to sell the horses. Upon this state of facts the defendant claimed that there was no actual and continued change of possession of the horses within the requirements of see. 2310, Stats. 1898, and hence "that there was a presumption that the transfer was fraudulent as to creditors of the son. Thus it appears that, while the primary question was the question of the ownership of the horses, the question of the character of the plaintiff’s apparent possession was important as bearing upon the primary question of ownership. Since the early case of Roebke v. Andrews, 26 Wis. 311, the principle has been well settled in this state that when the character of a party’s possession of property, either real or personal, is in question and material to the litigation, the statements made by such party while in possession, if apparently made in good faith, ate competent to be introduced in evidence upon the ground that the possession of property is •a continuous act, and that the declarations accompanying such possession are in fact a part of the act of possession and hence ■a part of the res gestee: Lamoreux v. Huntley, 68 Wis. 24, 31 N. W. 331; Cuddy v. Foreman, 107 Wis. 519, 83 N. W. 1103; Kreckeberg v. Leslie, 111 Wis. 462, 87 N. W. 450; Vagts v. Utman, 125 Wis. 265, 104 N. W. 88. If the declarations assert facts with reference to the title, such, as the ■purchase of the property of another, they are not evidence of ■such facts, but only evidence so far as they go to the extent or character oi the title claimed. Roebke v. Andrews, supra. Probably fów rules of evidence have been more frequently acted upon jm tbe trial of actions in the tidal courts than this-rule, and w^ do not feel it necessary to re-examine or open the-question nc&, notwithstanding the very vigorous assault made upon the rule by appellant’s counsel. Properly administered and applied, it is a valuable and wholesome rule and tends to aid in the administration of justice.

Upon cross-examination the plaintiff was asked whether his son handled his horses for him asdiis agent, and an objection to the question was sustained. This ruling might be difficult to sustain did it stand alone, but the bill of exceptions shows that the plaintiff had previously been asked practically the same question and had replied in the affirmative; hence there was ho error in refusing to allow a reiteration of the-same testimpny.

In hisj charge to the jury the circuit judge gave the following instruction:

“The laws of this state provide that a sale of such goods as. are involved in this action shall be presumed fraudulent as. against creditors unless the same be accompanied by an immediate delivery and followed by an actual and continued change of possession. Tou will note that this rule only applies when there has not been some immediate delivery and change of' possession. | If there had been no such delivery or change of possession the presumption of fraud is fully rebutted by proof that a full pid adequate consideration has been paid for the property ini question. Giving, credit on an existing bona fide-indebtedness is such full and adequate consideration.”

The appellant contends that the latter part of this instruction explanatory of the statute is erroneous. It is perhaps sufficient to say that the charge is fully in accord with the decision of this court upon the former appeal in this case (117 Wis. 267, 271, 94 N. W. 33), and hence there can be no error. 'Apart from this consideration, howevei*, the instruction is correct. ■ The ¡effect of it is simply to inform the jury that the proof that a full and adequate consideration was paid rebuts tbe presumption of fraud raised by sec. 2310 in case of no immediate delivery and change of possession. Tbe jury were not told that fraud was disproved by proof of tbe payment of a full consideration, but simply that tbe statutory presumption was rebutted. Whether fraud appeared from other proof was a question still open.

The defendant moved for a new trial on the ground of misconduct of a juror and on the ground of newly-discovered ■evidence, and error is claimed because the motion was overruled. We cannot consider this assignment because the affidavits used upon the motion are not incorporated in the bill of ■exceptions, nor are they attached thereto, nor described in any way by which they can be identified.

Certain instructions were asked for by the defendant and refused, but as no exceptions were preserved to these rulings we cannot consider them.

By the Gowrt. — Judgment affirmed.

■Siebeceeb, T., took no part.  