
    J. O. MITCHELL, Constable, etc., ex rel., GEORGE W. FAIRCLOTH, Respondent, v. J. D. TINSLEY, et al., Appellants.
    St. Louis Court of Appeals,
    March 13, 1900.
    1. Pleading and Practice: EVIDENCE: STATUTORY CONSTRUCTION: CONSTABLE’S BOND. Under the statute governing pleadings when the action or defense is founded upon a written instrument charged to have been executed by the adverse party, it was the duty of appellants if they desired to controvert the allegations as to the bond contained in the petition, to have answered under oath denying the execution of the instrument.
    2. -: -: -: -. Not having done this, the bond as set forth in the petition stood confessed by defendants, and there was no necessity for the formality of its introduction as evidence.
    3. Bill of Sale of Personal Property: POSSESSION, EVIDENCE OF CHANGE OF: STATUTORY CONSTRUCTION. As there is no statute in this state requiring absolute sales of personal property to be recorded, the record of a bill of sale is not evidence of a compliance with section 3410, Revised Statutes 1889, requiring a visible change of possession of the thing sold.
    4. -: --: -: OPEN, NOTORIOUS AND UNEQUIVOCAL CHANGE OF POSSESSION OF PERSONAL PROPERTY: PROOF, FAILURE OF. In the case at bar it is held that on the record there, was a failure of proof of an “open, notorious and unequivocal change of possession of personal property.”
    Appeal from the Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.
    Reversed.
    
      Oharles B. Baris for appellant.
    (1) Plaintiff admits tbat there was no change of possession of the lumber from Cawthon to him; that Cawth'on “just showed him the lumber and gave him the bill of sale.” Plaintiff exercised no acts of ■ dominion or ownership over the lumber, at any time, nor did he at any time, either before or after the levy of the execution, assume that open, notorious, continuous and unequivocal possession required by law. Plaintiff’s alléged title to the lumber, was, therefore, void as to Tinsley, the execution creditor. R. S. 1889, sec. 5178; Claflin v. Rosenburg, 42 Mo. 439; Stern v. Henley, 68 Mo. 262; State ex rel. Pierce v. Merritt, 70 Mo. 275; Dyer v. Balsley, 40 Mo. App. 559; Huggins Cracker & Candy Co. v. Ellis, 45 Mo. App. 585. (2) Section 5178, above quoted, applies as well to prior execution creditors, such as Tinsley was, as it does to subsequent creditors. Collins v. Wilhoit, 108 Mo. 451; Oester v. Sitlington, 115 Mo. 247. (3) While the burden of proof, in ordinary cases, would have been upon appellants to show the fraudulent intent set up in their answer, by a preponderance of evidence, yet the facts of kinship between Cawthon and Eaircloth having been admitted, and the inadequacy of consideration having been so clearly shown, had the effect of shifting this burden of proof as to fraud from appellants to respondent, and the refusal of instruction number one, asked for by the appellants, was wrong and erroneous. Garvin v. Williams, 50 Mo. 206; Street v. Goss, 62 Mo. 226; Miller v. Simonds, 72 Mo. 687; Bogie v. Nolan, 96 Mo. 85. The verdict is against the evidence, and against the law and the evidence. In such cases, appellate courts will exercise the right of reversal, if it appear that the verdict was the result of passion and prejudice. Sophn v. Railroad, 87 Mo. 74; Áckley v. Staehlin, 56 Mo. 479.
    No brief for respondent furnished reporter.
   BOND, J.-

This suit is upon a bond given to a constable by an execution plaintiff upon a claim of ownership to the property- seized by tbe officer made by a third party. There was a verdict and judgment for plaintiff. The obligors in tbe bond appealed.

The first error assigned is that tbe record does not show that tbe bond sued upon was introduced in evidence on tbe trial. It was set out according to its legal tenor and effect in tbe petition, and a copy of it was annexed thereto as an exhibit. Under tbe statute governing pleadings where tbe action or defense is founded upon a written instrument charged to have been executed by tbe adverse party, it was tbe duty of appellants if they desired to controvert tbe allegations as to tbe bond contained in tbe petition, to have answered under oath denying tbe execution of tbe instru-' ment. Not having done this tbe bond as set forth in tbe petition stood confessed by defendants, and there was no necessity for tbe formality of its introduction in evidence. R. S. 1899, sec. Y46; Handley v. Railway, 55 Mo. App. loc. cit. 505; Smith Company v. Rembaugh, 21 Mo. App. 390. This point is accordingly ruled against appellants.

It is next insisted that tbe judgment should be reversed for failure of tbe record to contain any evidence tending to show that Eairclotb, tbe alleged purchaser of tbe property and who 'brings this suit upon tbe bond executed to tbe constable by whom tbe property was levied upon and sold, complied with tbe requirements of tbe statute by taking open, notorious and unequivocal possession of tbe property within a reasonable time. R. S. 1899, sec. 3410. Tbe record shows that tbe alleged purchaser took a bill of sale setting forth in general terms that be bad purchased tbe undivided one-half interest of bis vendor in tbe cottonwood and ash* lumber at tbe Rowland mill, and that be caused this instrument to be filed for record; that be took no manner of possession of tbe property, simply bad it pointed out to him, allowed it to remain in tbe same condition without in any wise affixing a mark or designation of bis ownership or taking any steps whatever to apprise the community that a change in the title had taken place. As there is no statute in this state requiring absolute sales of personal property to be recorded, the record of the bill of sale was not evidence of a compliance with the law requiring a visible change of possession of the thing sold. Kuykendall v. McDonald, 15 Mo. 416. As the record is further barren of any substantial evidence of things done by the purchaser to take possession of the property and to indicate that fact to the public, there was certainly a failure of proof of an “open, notorious and unequivocal change of possession.” Revercomb v. Duker, 74 Mo. App. 570, and cases cited. It was therefore the duty of the trial court in this case to have directed a verdict for the defendants. Its submission of the issues as to change of possession to the jury was error, for which the judgment rendered upon their verdict in favor of plaintiff must be and is hereby reversed.

All concur.  