
    James B. Davis and Wiley P. Davis v. Loftin.
    Where rulings of the court below relate to questions which are superseded in their application to tho particular case by some principle which underlies them, they are immaterial, and therefore can afford no ground for reversing the judgment. (Note 83.)
    Where the staternont of facts was obviously imperfect, and tho clerk, in making up the transcript, certified that two pages of it nad been lost, and that if they had not been lost it would have appeared that a certain deed which he transcribed was admitted in evidence: Sold, That the statement of the clerk respecting the contents of tho statement of facts could not be received; but if there was reason to apprehend that injustice had been dono upon the trial, it might become necessary to inquire what remedy is left to tho party,and whether or not tho judgment might not be reversed upon apparent or probable error.
    The record of a bill of sale of personal property in a county other than that wherein the property ‘■remains” is not constructive notice to a subsequent purchaser.
    Instructions must be taken and considered in reference to the evidence. That an instruction be correct in its application to the particular case is all that is required. So, alan, the refusal of an instruction good in itself may be justified on,the ground that it we jt beyond the particular ease made by the statement of facts.
    Where the owner of property makes a conveyance, absolute in form, with a parol trust annexed, a subsequent purchaser from the donee, without notice of the trust, would not be affected by it.
    It seems that it is the province of the court to arrest the argument of counsel when they propose to insist that the jury should find a fact in support of which no evidence has been introduced.
    An impossible date raises a presumption of ante or post-dating, not of alteration.
    The alteration of a bill of sale of a slave by the vendee would not affect a subsequent purchaser without notice.
    
      A bill of sale is not necessary to pass the title to a slave. (Note 84.)
    Where tho court was requested but refused to charge the jury that a certificate of a clerk of the County Court stating that an instrument had been filed in his office for recording, given prior'to its probate, was not evidence of any fact: ZTetá,’That whether such certificate was evidence of any fact was an immaterial inquiry, to which the court was not required to respond.
    Appeal from Rnsk. The appellee sued the appellant to recover tlie possession of a negro alleged to liave been purchased by the plaintiff of one Monroe, and to have been “decoyed, taken, and carried away” from his possession by the defendants, and by them wrongfully withheld from the plaintiff, said negro being tlie property of the plaintiff, of tlie value of eight hundred dollars.
    The defendant. Wiley P. Davis, answered, (at the Pall Term, 1848,) disclaiming the ownership of the negro, but stating that he formerly,did own him hnt sold him in 1845 to one William G. Davis. ‘'He denied that he decoyed the negro from the possession of the plaintiff, or that the plaintiff lost the possession of tlie negro as alleged by bis advice or procurement. At the Spring Term, 1849, he amended by a general denial and a special denial of possession.
    At tlie Fall Termj 1S48, James B. Davis answered, stating that it might be true that the plaintiff did purchase the negro from Monroe as alleged, but lie denied that lie thereby acquired any right to the negro, for that Monroe, was not the owner. He farther alleged that he (the defendant) “ is the owner of the negro by purchase from one Gideon, for a valuable consideration, on the Sth day of January, 184S.” He also denied that he decoyed or caused the. negro lo he decoyed from the possession of the defendant, or that tlie plaintiff was deprived of the possession of the negro by liis advice or procurement. He did not admit that the plaintiff had possession, as alleged; but if he was in possession, he alleged it was by means of fraud practiced by the plaintiff or some other person upon the rights of the defendant. He also amended at the Spring Term, 1849,'.by a general denial.
    Upon the trial (at the Pall Term, lSf>0) the plaintiff offered to read-in evidence a bill of sale of the negro from William (4. Davis to Richard Meek, dared May IS, 1847. The defendant objected to the reading of the bill of sale, without other proof of its execution than the certificate of the clerk before whom it, was proved for recording, on account of the omission of the certificate to state that the witness was'a subscribing witness to the bill of sale, and liad signed it as such at the request of Meek, the maker. The court overruled the objection and permitted the bill of sale to be read in evidence.
    It appeared that the words “State of Texas, comity of Milam.” at the commencement of the bill of sale, had been written very near the top of the paper on which the bill of sale was written, and that over these words were written the words and figures “May the 18th, 1847,” “which last-mentioned words the defendant insisted before the jury were interlined after the bill of sale was executed and delivered and without the knowledge or consent of the said William G. Davis.”
    The plaintiff then gave in evidence a bill of sale of the negro from Richard Meek to Monroe, dated on the 21st day of June, 1847, which was read to the jury without objection. lie then offered to read in evidence a bill of sale from Monroe to himself, dated on the 16th day of August, 1847; to which the same objection in substance was-made as to that from Davis to Meek. The court overruled the objection, and the instrument was read to the jury.
    The plain!iff then proved by the deposition of Lewis Meek the purchase of the slave, by Richard Meek from William G. Davis in Milam county in May. 1847, and tile payment of the purchase-money, $900, for the negro in controversy and a woman named Harriet, bought at the same time. The plaintiff then proved by the deposition of John J. Loftin that Monroe liad the negro in possession; that lie took him to the plaintiff in Grimes county and traded him to the plaintiff, receiving a negro girl and one hundred dollars from the plaintiff in exchange and payment for the boy; that the negro remained in possession of the plaintiff for about four months, and was stolen oi-rán away on the Cth or 7th of December, 1847. The plaintiff’ then offered to read the deposition of one John McLennan to prove that he, McLennan, had at, one time in his hands as an officer certain attachments, which he levied on the negro in controversy as the properly of Wiley P. Davis; that William G. Davis claimed the negro; that Richard Meek discharged the attachments, and that lie delivered the negro to him, Meek, upon his producing a bill of sale and order to that effect from said William G. Davis. The defendant objected to the reading of the deposition, but the court overruled the objection.
    The defendant then introduced a witness, John Davis, the substance of whose testimony is that some persons once came to his house in Burleson county and compelled him to give them an oriler on William G. Davis for the negro in controversy in place of one which liad been hired out in Milam county and liad run away; that the negro was delivered to one Frazier, who died shortly afterwards, and his administrator hired out the negro; that Richard Meek applied to the witness for a bill of sale to enable him, Meek, to go and procure the negro for the witness; that tito witness declined giving the bill of sale, telling Meek the negro did not belong to Him; that afterwards William G. Davis came to liis (witness’s) house, and Meek applied to him for a hill of sale, promising to go into Milam county, where the negro was in the possession of Monroe, and get and deliver him to said William G.; that the latter-agreed to give him the bill of sale for that purpose, and that they started for the residence of Meek, in Milam comity. The witness did not go with them, and did not know whether the hill of sale was ever executed according to ’ the agreement of the parties. At this point in the statement of facts there occurs a note of the clerk, stating that pages 11 and 12 of the original statement of facts had been lost. The statement of facts then proceeded with the testimony of a witness whose name did not appear; but from a reference to his testimony in a bill of exceptions in the record it doubtless was William G. Davis, who was proceeding to testify respecting a bill of sale of the negro in question, made by himself in Cherokee conuty. lie says he executed the bill of sale in Cherokee county and left for his brother John’s, on the Brazos; that he was from live to seven days on tiie way; that he proceeded from his brother John’s to Meeks’s, in Milam' county, The defendant then asked the witness to state the consideration and object for which he executed the bill of sale to Meek, and how long it was after he executed the bill of sale to Gideon in Cherokee ; to which the plaintiff objected, and his objection was sustained by the court. The defendants then read a bill of sale from Gideon to the defendant James B. Davis, hearing date on the 8th of January, 184S.
    After the statement of facts (he clerk inserted a note that believing the bill of sale, on tile from William G. Davis to Gideon, bearing date on the 13th day of May, 1847, was a part of the statement of facts, and would so appear, if pages 11 and 12 of that statement could be found, he inserted in the transcript that bill of sale, which purported to be a bill of sale from the said William G. Davis to Gideon for several negroes, including the one in controversy, executed in Cherokee county on tiie 13th day of May, 1847. There was a bill of exceptions to the rulings of the court upon the admissibility of evidence.
    The court instructed (lie jury that “if the possession of the negro did not accompany the bill of sale from Davis to Gideon the burden of proof was on the defendant to show that the sale was bona fide, and that Gideon paida valuable consideration.
    , “That although Meek may have obtained said slave from William G. Davis by fraud, yet, if Loftin was an innocent purchaser for a valuable consideration without notice, bis right conld not be affected by said fraud.”
    The defendants asked the court to instruct the jury “that if they believed from tiie testimony that the bill of sale from William G. Davis to Meek was altered by Meek, or any other person by his consent, and without the knowledge or consent of said Davis, after it was executed and delivered to Meek, then such alteration, if material, rendered said bill of sale void, and no one could derive title under it.” Which instruction the court refused.
    . The defendants further asked the court to instruct the jury “that under the law a recorder or clerk of the Comity Court is not authorized to receive any instrument for recording until after it has been legally proven for record, and that any certificate given by said clerk or recorder, stating that such instrument liad been filed by him for recording prior to its probate, is not legal evidence of any fact.” The court gave the following portion of said charge, “that under the iaw a clerk of tiie County Court is not authorized to receive any instrument for recording until after it has been legally probated for record,” and refused to give the rest of the charge.
    The defendant further asked the instruction “that the consideration expressed in the bill of sale from William G. Davis to Gideon is prima facie evidence of its truth,” which the court also refused.
    After having been out-, considering of their verdict, the jury returned into court and asked the judge, “ If they believed from tiie testimony that the bill of sale, from William G. Davis to Richard Meek had been altered after it went into Meek’s possession, without the consent, or knowledge of Davis, if it would make it void, to which the court replied, it would not.”
    There was a verdict and judgment, for the plaintiff for the negro or his value and his hire. A motion for a new trial overruled.
    
      The errors assigned related to tlie rulings of tlie court—
    1st. Respecting the admissibility of evidence; and,
    2d. In the instructions to the jury.
    
      W. B. Turner, for appellants.
    1.Tlie deed from W. G-. Davis to Meek was improperly admitted in evidence. Tlie certificate of the clerk who took the proof of it for recording does not show that the witness subscribed the instrument as a witness at the request of the grantor. (Hart. Dig., art. 745, 2701.)
    H. ilcLennan’s deposition was inadmissible. Tlie proceedings of courts of record and all courts which keep a memorial of their transactions in writing can he proved only by tlie record or such memorial. (2 Stark. Ev., 571; 1 Bay 11.. 3Ü4; Hart. Dig., art. 744.)
    HI. There was error in the refusal of tlie court to give the charge asked i,¿ relation to the effect of tlie alteration of the bill of sale from IV. G. Davis to Meek. (Master v. Miller, 4 T. R., 320-; 5 Id., 307; 2 Black., 141; Powell v. Divefh, 15 East. R., 29 ; Cliitty oil Bills, 204, 205.)
    IV. The hill of sale from W. G. Davis to Meek was for a particular purpose, and any perversion that Meek might have made of it could not affect tlie proper owner.
    V. There was error in not permitting the witness, IV. G. Davis, to explain the character of the transaction between himself and Meek. (Wright w. Midiólas, 1 Bibb. R., 298: 2 Mass. R., 108: A'ddis. R., 144; 2 Stark. Ev., 118, 119.)
    
      Ochiltree Sf Jennings, for appellee.
    I. It is shown by tlie deposition of John J. Loftin that plaintiff was lawfully possessed of the slave from Monroe for several months, until Gth or 7th December, 1847, when lie lost it by theft or in some other involuntary way, and defendants were found to have the slave tinder their control in March, 1848, without any lawful accounting for their possession of him ; and as they [496] have failed'to show any right of property or possession to countervail his pos-sessory right, (.lie verdict for plaintiff against them was right. (3 Stark. Ev., 1153, and cited cases.) '
    II. If plaintiff is under the legal necessity of tracing his title back to IV. G. Davis, lio has done so, without resorting to any of the questioned bills of sale : 1st. By J. J. Lofliu’s proof of a purchase and acquisition of possession from Monroe above referred to; 2d, uncontrovcrled bill of sale from R. Meek lo Monroe; 3d, by the deposition of Meek and McLennan, showing in parol a sale and delivery from IV. G. Davis to R. Meek, and payment of the consideration bj Meek.
    III. If tlie District Court made any charges, or refused any that may have been objectionable on principle, they were more abstractions. Any improper admissions of testimony that might have been made were of matters clearly unnecessary to plaintiff’s case, and there is quite enough to sustain tlie verdict without the mutters objected to.
    IV. There is a decided conflict of testimony as to a sale in Cherokee on the 13tli and in Milam county on the 18th of May by tlie same William G. Davis, and tlie jury have settled this dispute about a matter of credibility in favor of plaintiff, and this court will not disturb their conclusion on that point.
    V. Even if it were proven that defendant’s vendor, Gideon, had purchased the slave before plaintiff, yet if plaintiff or his vendor purchased secondly, without notice of tlie prior sale, and got possession with his purchase, he'is entitled to hold. (3 Stark. Ev., 1223 and notes; Lanfear®. Sumner. 17 Mass. R., 110; Lamb v. Durant, 12 Id., 54; Shaw v. Levy, 17 Serg. &R. R., 99.)
   IViieeleb. J.

IVe have repeatedly decided that rulings of the court in respect to immaterial and irrelevant matters, though erroneous, will not authorize a reversal of judgment; and we have refused to revise such rulings.

Were the rulings complained of in this case material? And, first, in respfect to the bills of sale aiul the deposition of McLennan. Did the plaintiff’s right to recover depend in any measure upon those bills of sale and that deposition? The plaintiff’s possession by virtue of his purchase from Monroe was fully proved, and, indeed, it was not denied otherwise than by a general denial filed at a term subsequent to the defendants’ original answers to the merits, in which, though not expressly, they tacitly admit the plaintiff’s possession. The fact of possession by the plaintiff, however, was fully provexl. “The effect of possession (says Starkie) as affording presumptive evidence of right is very powerful. As against a mere stranger, the simple occupation of property, whether real or personal, however recent, is evidence of a right, and will enable the possessor to maintain trespass or trover, and, even where the right is otherwise doubtful, ought to turn the scale.” (3 Stark. Ev., 900.) Possession of property is prima facia evidence of ownership. As against a mere wrongdoer it is sufficient evidence of title to enable the plaintiff to recover the possession of which lie has been wrongfully deprived, although the plaintiff claim under a title which is defective. (Id., 1153; 11 Wend. R., 54.)

The defendants do not deny that the plaintiff was wrongfully deprived of the possession of the negro or that upon the dispossession of the' plaintiff the negro came into the possession of the defendant James B. They deuy simply tiiat they are chargeable with the decoying away of the negro from the plaintiff or that he was dispossessed by their procurement. They are charged with having gotten possession wrongfully, yet they do not Attempt in any way to explain or account for the manner in which they did obtain possession. They allege title in the defendant James B., and endeavor to support the allegation by proof of title derived from Wm. G. Davis, through one Gideon. Bur. there is no evidence in the record of any sale from Wm. G. Davis to Gideon, the defendant’s immediate vendor, They have therefore failed to show a transmission of property from Wm. G. Davis to themselves.. Under the. pleadings and evidence, as presented by the record, the defendants appear to be mere strangers and wrongdoers, who cannot lawfully hold against the plaintiff’s presumptive right'arising upon the evidence .of his prior possession.

In this view of the case we have excluded from onr consideration the bill of sale inserted in the. transcript by the clerk. And it is clear tiiat we cannot receive as authentic or as constituting a part of the statement of facts a paper thus supplied by the clerk upon his knowledge of what transpired at the trial. He is not the officer to whom the law lias intrusted the making of the statement of facts, and no statement of his respecting its contents can be received. It, however, is evident from the record, apart from the statement of the clerk, that, the statement of facts is imperfect. If, therefore, there were reason to apprehend that injustice had been clone upon the trial, it might become necessary to inquire wliat remedy is left to the party, and whether we might not he authorized to reverse the judgment upon apparent or probable error aud remand the case for a new trial in order to prevent wrong and injustice. But if it should appear that though the omission in the statement of facts were supplied it would not change the result, there will he no occasion for tiiat inquiry.

Supposing the hiatus, which evidently does exist in the statement of facts, to be supplied by inserting the bill of sale from William G. Davis to Gideon, how, tlieu, will stand the question of right between the parties, excluding at the same time the deposition of McLennan and the two bills of sale which the defendants insist were illegally admitted in evidence? Both parlies referred the origin of their title to William G. Davis. The plaintiff proved by the deposition of Lewis Meek that William G. Davis sold the. negro in quest ion to Bichard Meek, for a valuable consideration, in May, ÍS47, the negro Hum being, as appears by the testimony of the defendants’ witness, Joint Davis, in the comity of Milam, where Meek resided, and where the sale .was made. Tiie plaintiff then gave in evidence, without, objection, the, bill of sale from Meek to Monroe, dated June 21st, 1847, he, Monroe, having been previously in possession. The plaintiff further proved by tiie deposition of John J. Lof tin that Monroe sold and delivered the negro to the. plaintiff in the county of Grimes for a valuable consideration. The plaintiff lias (Inis shown transmission of property from William G. Davis to himself by evidence which went to the jury without objection, and is unimpeaehed.

Have the defendants repelled this evidence of the plaintiff’s right, by proof of a superior title? They shown naked bill of sale, executed in Cherokee county, by William G. Davis to one Gideon, when the negro was in Milam county; and, though anterior in date to the sale by William G. Davis to Meek, there is no pretense that Meek, or Monroe, or the plaintiff, when (hey respectively purchased, had notice of this bill of sale to Gideon, either actual or constructive. The recording of the bill of sale in Cherokee county was not, under the circumstances, constructive notice to those to whom the properly was subsequently sold, accompanied by tiie delivery of possession in the comities of Milam and Grimes, (Hart. Dig., arts. 2774, 2787.)

The proof is not positive as to the possession of Meek; but it is in proof that Monroe was in possession before the sale to Meek. lie is found in possession afterwards, asserting title, and sells, and delivers possession of the property to the. plaintiff. The presumption is that Meek acquired possession under his purchase from William G. Davis, and that there was a regular tradition of possession, with the right of property, from him to the plaintiff. Tiie force of (his presumption is not impaired by proof of any possession adverse to that thus transmitted to tiie plaintiff. There is no pretense that William G. Davis was in possession at the time of his sale to Gideon, or that Gideon or the defendant. ever liad possession of the negro until after the plaintiff wa's wrongfully dispossessed of him. There can be no doubt that, under the (widenee, the right of property, as between these parties, was in the plaintiff, and that lie was entitled to recover, admitting all tiie evidence claimed to have been introduced by the defendant and excluding that of the plaintiff to which exception was taken.

It is evident that the plaintiff’s right to recover was not dependent upon the evidence which, it is insisted, was erroneously admitted, and that the rulings respecting that evidence are wholly immaterial. It does not become necessary, therefore, to revise Che rulings.

It. remains to consider the rulings of the court in the instructions to the jury.

It is insisted that tiie court erred in the instruction: that though Meek may have obtained tiie negro from William G. Davis by fraud, yet if tiie plaintiff was a purchaser for a valuable consideration without notice of the fraud, it would uot affect liis right.

Tiie instruction must be taken and considered in reference to the evidence; and so taken, it was, we think, correct. Tiie defendants liad offered testimony to prove that the bill of sale, given by William G. D.ivis to Meek was not intended, as between the parties to it, to operate as a sale, but was only to be used as a power of attorney, as between themselves, to enable Meek to get possession of the negro for Davis; but if Davis invested Meek, ostensibly, with the absolute title, and thus held him out to tiie world as the real owner of the property, and by reason thereof he sold the property to a person not cognizant of the private understanding between him and his vendor, nothing can he more perfectly clear than that tiie title of his vendee, acquired bona fide, would be good as against Ills vendor. As to subsequent purchasers from Meek without notice, the conveyance would be good, however fraudulent the transaction may have been as between Davis and Meek. Tiie innocent purchaser would not be affected by the fraud of Meek, which Davis had placed it in his power to perpetrate oil him; and this, in effect, was the instruction in question applied to the evidence.

In respect, to the iiislrnctiqn asked as to the effect of an alteration of (.lie bill of sale from Davis to Meek, it may suffice to say that there was no evidence o£ such alteration, and it, not only was right ^;o refuse the instruction, but the court might well have arrested the argument of counsel on that point when they proposed to insist before the jury that they should find, without evidence, the instrument to have been altered, and therefore void.

Note 83.—Willis v. Chambers, 8 T., 150.

Note 84.—Dooley v. McEwing, 8 T., 306; Clifton v. Lilley, 12 T., 130.

It cannot bo pretended that the supposed want of time for the maker of the instrument to have gone from Cherokee to Milam county, in the interval between tho dates of the bill of sale to Gideon and of that to Meek, was evidence to show that the latter had been altered after it was delivered to Meek. It might have been evidence going to show that the instrument was antedated, but surely not that it was altered after delivered.

But if the date had been so altered by Meek, will it be pretended that the title of his vendee without notice would be thereby affected ? The writing- was not necessary to pass title to this species of property. The title of the purchaser is equally good without as with it.

There was no error in the refusal of the court to instruct the jury that a certificate of a clerk of a County Court, stating that an instrument had been filed in Ills ofiice for recording, given prior to its probate, is not evidence of any fact. Whether such certificate would be evidence of any fact was an immaterial inquiry. That was not a question which the court could be called upon in that case to determine, and the court might well decline the expression of an opinion upon it.

There are other rulings to which the assignment, of errors relates, but which are not deemed of a character to require notice. We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.  