
    Lewisburg.
    Forkner v. Stuart &c.
    
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. On a sale of slaves, if the possession of the slaves does not accompany the sale, but remains with the vendor, such retention of possession by the vendor is prima facie evidence of fraud, but is not conclusive; and it is liable to be repelled by satisfactory legal evidence of the fairness and good faith of the transaction.
    2. C makes an absolute bill of sale of slaves to F; and F executes to him an obligation that upon C’s producing evidence of the payment of a certain debt for which F is bound as surety for W, that he will cancel the bill of sale. This is not a mortgage ; but the bond is a conditional defeasance.
    3. In an action on an indemnifying bond, the relator claims title to the property sold, under a sale made by one partner without the knowledge or consent of the other, of partnership property. The relator may recover for the undivided interest of the partner who made the sale, under a general allegation in the declaration of his ownership of the property.
    4. One partner, in the absence and without authority from his co-partner, sells partnership property, and executes a bill of sale under seal, in the name of both, to the purchaser. The sale is made to pay a pressing debt, of the absent partner, and is bona fide and for full value, and the money is applied to pay the debt. Held : That the partner having authority by law as partner, to sell partnership effects, his sale thereof is obligatory upon and passed the title of the firm.
    
      5. A bill of exceptions to the opinion of the Court refusing a new trial on the ground that the verdict is contrary to evidence, sets out the whole evidence, both of the plaintiff and the defendant, instead of stating the facts proved. The appellate Court will not consider the question.
    This was an action of debt, brought upon an indemnifying bond, in the County court of Grayson, by Hail, sheriff, at the relation of Micajah Forkner, against Archibald Stuart and Thomas J. Boyd. The action was to recover damages for the sale of two slaves, Armstead and David, who had been levied on and sold as the property of Jonathan Cook; and who the relator Forkner claimed as his own property. The defendants pleaded two pleas. The first was “conditions performed;” and the second was that the two slaves were not the property of Micajah Forkner at the time they were seized and sold under the execution in the declaration mentioned: And on these pleas issues were joined.
    On the trial of the cause, after all the evidence had been submitted to the jury, a part of which was the deposition of Jonathan Cook, the plaintiff moved the Court to instruct the jury that so much of Jonathan Cooks testimony, as speaks of the contents of a written instrument, is not competent evidence, unless the same was produced in evidence, or its non-production legally accounted for; which instruction the Court refused to give, no objection having been made to the reading of the testimony; and the plaintiff excepted. From the evidence as spread upon the record, it does not appear that Cook gave any such testimony.
    The defendants then moved the Court to give the jury ten several instructions. Of these the first five were substantially the same. The first was : That if it should appear to them from the evidence, that Jonathan Cook sold the negroes in the declaration mentioned, to the relator, and executed an absolute bill of sale to the relator for the same, and the possession thereof did not bona fide accompany the sale of the said negroes, but remained with the said Jonathan Cook, that the said contract and sale was fraudulent and void as to creditors and subsequent purchasers of the said Jonathan Cook, without notice; and the jury ought to find for the defendants. The other four instructions only varied to meet the different phases of the testimony. The sixth instruction was not objected to by the plaintiff.
    SMW-OTOOt sS®BA®Y. The seventh instruction was : That if they believed from the evidence that Jonathan Cook, or Eli & Jonathan Cook, made an absolute bill of sale for the slaves aforesaid, upon the condition that the relator would give to the said Cook an obligation binding himself to cancel all the papers at any time that the said Cook should produce a receipt shewing that a certain debt due from the relator to the Salem Bank was settled, then the said bill of sale operated as a mortgage, and if it was not recorded according to law, was null and void as to creditors.
    Eighth. That if they shall believe that the negroes in controversy were the joint property of Eli & Jonathan Cook, that the said Jonathan Cook could not convey the interest of Eli Cook in the said negroes, without his knowledge and consent; and the relator claiming title to the whole property, cannot recover in this action.
    Ninth. And farther, That if the said negroes were the partnership property of Eli & J. Cook, that Jonathan Cook, one of the partners, had no right to execute a sealed instrument in the name of the firm, without a special agreement authorizing him so to do, or unless done in the presence and with the approbation of Eli Cook ; and that the bill of sale given in evidence to the jury being an instrument of that description, is void, and conveys nothing to the relator. The tenth instruction was not objected to by the plaintiff.
    
      To the 1st, 2d, 3d, 4th, 5th, 7th, 8th and 9th instructions the plaintiff objected, and in lieu thereof offered the following, viz: If the jury shall believe from the evidence that the relator took actual possession of the slaves in the declaration mentioned, under his purchase, before any right attached in favour of creditors, it is immaterial whether the possession accompanied the sale or not.
    
    2d. If the jury shall be of opinion from the evidence, that at the time of the sale of the slaves in the declaration mentioned, by J. Cook to the relator, they were levied on by executions in the hands of the sheriff against Eli Cook, and the said slaves were sold by Jonathan Cook, at their value, to the relator, for the purpose of satisfying said executions, or part of the amount due, and the purchase money was so applied, such sale would pass the interest of said Eli Cook in said slaves, if they were partnership property of Eli if Jonathan Cook.
    
    3d. That where the grantor of personal property remains in possession after an absolute conveyance, such possession is not conclusive evidence of fraud, but is open to explanation.
    The County court overruled the plaintiff’s objections to the instructions asked for by the defendants, and gave the said instructions to the jury; and refused to give those asked for by the plaintiff; whereupon the plaintiff excepted.
    The verdict of the jury was as follows, viz : “ We of the jury, acting under the instructions of the Court, find for the defendants.” The plaintiff then moved the Court for a new trial; but the Court rejected the motion : and the plaintiff again excepted. This was the only exception which stated any of the facts proved, or evidence given on the trial; and from it the relevancy of the instructions asked for appeared. But this Court declined to consider the question involved in this exception, because it spread out on the record all the evidence given on the trial, instead of the facts which were proved.
    The relator claimed the slaves in question under a bill of sale under seal, dated the 22d of January 1836, signed Eli & J. Cook, by which they, in consideration of 2000 dollars, conveyed the two slaves to him ; and he proved by one of the deputy sheriffs of Grayson county, that the said sheriff had levied on the slaves under executions in his hands to the amount of 2000 dollars, against Dabney Walker, Samuel Forkner and Eli Cook, in which Eli Cook was a security; and that he went to the house of Jonathan Cook the day before the bill of sale was executed, for the purpose of removing the slaves; where, at the request of said Cook and Samuel Forkner, he remained until the next day, when, as they said, they expected the relator, who they knew had money, and they hoped to be able to get it from him. That the relator did come the next day, when application was made to him for the money, and after they had been together some time, and had executed a writing which witness did not see, the relator paid him 1050 dollars, which was applied by him as a credit on the executions in his hands. Witness did not see the slaves delivered into the actual possession of the relator, but the money paid to him was on account of the slaves, and to save them from being sold under the executions. They were afterwards sold by the witness when the indemnifying bond sued on in this case was executed, and they then sold for 1012 dollars, which was about or nearly their value. That for twelve months after the sale to the relator, witness saw them nearly every week in the possession of Jonathan Cook. That Eli and Jonathan Cook were partners. The plaintiff also offered evidence to prove that he hired the slaves to a third person ; and that he had them at one time in his possession in North Carolina, where the relator lived.
    
      The defendants introduced Jonathan Cook as a witness to prove that the money paid to the sheriff was the money of Samuel Forkner, one of the principal defendants in the executions; which money had been placed in the hands of the relator to indemnify him for his liability for Walker and Samuel Forkner to the Salem Bank in North Carolina. And that the relator had agreed to let. and did let the sheriff have 1000 dollars, upon the condition that Jonathan Cook would make to him a bill of sale for the two slaves; and that said Cook consented to make the bill of sale upon condition that the relator would give him an obligation binding the relator to cancel all the papers at any time Cook should produce to him a receipt shewing the debt due the Salem Bank was paid. The witness also stated, that at the time the bill of sale was made, Eli Cook was absent in the western country, and that the witness signed it for both. That they were partners, and the slaves partnership property. And on eross-examination he said that he did not know whether the debt to the Salem Bank had been paid; but he had never produced the evidence of its payment to the relator. The defendants also introduced evidence to prove that the possession of the slaves by the relator was but for a few days, and merely colourable. Such were the pretensions of the plaintiff and defendants, on which the instructions asked for were based.
    On the application of the plaintiff, the Circuit court of Grayson awarded a supersedeas to the judgment of the County court; and the cause was then transferred to the Circuit court of Smyth county: And when it came on to be heard, that Court affirmed the judgment of the County court. Whereupon the plaintiff applied to this Court for a supersedeas, which was awarded.
    
      Floyd and Fulton, for the appellant,
    insisted, that the first five instructions, which were substantially the same, were in conflict with the case of Davis v. Turner, 4 Gratt. 422. That the seventh instruction was an abstract proposition founded on no evidence in the cause. That the eighth instruction was condemned by the case of Stephens v. Bransford, 6 Leigh 246. And that the ninth instruction was inconsistent with the principles decided in the cases of Anderson & Wilkins v. Tompkins, 1 Brock. R. 456, and M’Cullough v. Somerville, 8 Leigh 415; and also Gow on Part. 76.
    In answer to the suggestion that the Court would not reverse the judgment for an erroneous instruction, if upon the evidence the verdict was right, they referred to M’Clanachan v. Universal Ins. Co. 1 Peters’ R. 170.
    
      Sheffey, for the appellees,
    insisted, that the first five instructions were not in conflict with Davis v. Turner, 4 Gratt. 422, but that they embodied the general rule laid down in that case, when looked to in connection with the facts proved. The rule laid down in that case is, that the presumption is the sale was fraudulent; and the instruction asked for was, on the facts assumed, in accordance with Davis v. Turner. And this view of the case of Davis v. Turner, he insisted, was sustained by the cases of Land v. Jeffries, 5 Rand. 211; Mason v. Bond, 9 Leigh 181.
    He insisted further, that the instructions asked for by the appellant, were mere abstract propositions, not founded on the proofs in the cause; which, therefore, the Court was not bound to give. Buster’s ex’or v. Wallace, 4 Hen. & Munf. 82.
    He insisted further, that the relator had no such title as he alleged in his declaration. That the deed of Jonathan Cook, one of the partners, was inoperative to pass the partnership property. Gow on Part. 74-5; Story on Part. p. 173, § 117. That the plaintiff in his declaration claimed the whole property in the slaves: and this was put in issue by the second plea: And this distinguished the case from Stephens v. Bransford, 6 Leigh 246.
    He insisted further, that the judgment being correct upon the proofs, the Court would not reverse it even if the instructions were erroneous. Newell v. Wood, 1 Munf. 555; Preston v. Harvey, 2 Hen. & Munf. 55; Davies v. Miller, 1 Call 110.
   Baldwin, J.

delivered the opinion of the Court.

It seems to the Court, that upon the question at the trial, whether the alleged purchase by the relator, of the slaves in the proceedings mentioned, from Jonathan Cook, was fradulent and void as against the creditors of the latter, it would have been proper for the County court to have instructed the jury, that if it appeared to them from the evidence that the said Jonathan Cook sold the said slaves to the relator, and executed to him an absolute bill of sale therefor, but that the possession of said slaves did not accompany such sale, but remained with the vendor, then that such retention of possession by the vendor was prima facie evidence of such fraud, but not conclusive; and was liable to be repelled by satisfactory legal evidence of the fairness and good faith of the transaction. And it therefore seems to the Court, that the five several instructions given by the County court to the jury, and excepted to by the relator, in reference to such sale and retention of possession by the said Jonathan Cook, or by Eli & Jonathan Cook, were erroneous, inasmuch as they assert that such sale was in itself fraudulent and void as against the creditors of the said Jonathan Cook.

And it further seems to the Court, that the County court erred in instructing the jury, “that if they believed from the evidence that Jonathan Cook, or Eli & Jonathan Cook, made an absolute bill of sale of the slaves aforesaid, upon the condition that the relator would give to the said Cook an obligation binding himself to cancel all the papers, at any time that the said Cook would produce a receipt shewing that a certain debt due from the relator to the Salem Bank was settled, then the said bill of sale operated as a mortgage, and if it was not recorded according to law, was and void as to creditors, and the jury ought to find for the defendants;" for besides other objections to that instruction, if such obligation had been actually executed it could have operated at most only as a conditional defeasance, and have availed nothing without performance of the condition.

And it further seems to the Court, that the County court erred in its instruction to the jury, “ that if they should believe from the evidence, that the slaves aforesaid were the joint property of Eli & Jonathan Cook, that the said Jonathan Cook could not convey the interest of Eli Cook without his knowledge and consent, and the relator claiming title to the whole property could not recover in this action;" for without expressing any opinion upon a question not presented by the instruction, as to the effect of such a sale by Jonathan Cook, if the same was acquiesced in by Eli Cook, or the proceeds thereof applied to the payment of executions against him levied upon the property, the instruction imports the erroneous proposition, that in an action upon an imdemnifying bond, the relator cannot recover damages for a limited or undivided interest in the property seized and sold, under a general allegation in the declaration of his ownership of the property; whereas the variance is immaterial except as regards the damages, as to which a part owner who is sole relator can recover only for the value of his share ; and if objection to the non-joinder as relator of another part owner be at all available in such an action, it can only be made so by pleading it in abatement.

And it further seems to the Court, that the County Court erred in its instruction to the jury, “ that if the slaves aforesaid were the partnership property of Eli & Jonathan Cook, that Jonathan Cook, one of the partners, had no right to execute a sealed instrument in the name of the firm, without a special agreement authorizing him to do so, or unless done in the presence and with the approbation of Eli Cook, and that the bill of sale given in evidence to the jury, being an instrument of that description, is void, and conveys nothing to the relator:" for there was evidence before the jury tending to prove that, at the time of the sale of said slaves to the relator, executions against Eli Cook were levied on them by the sheriff, and that the said slaves were sold by Jonathan Cook, at their value, to the relator, for the purpose of satisfying the said executions, and the purchase money so applied; and although the said bill of sale was not the deed of the said Eli Cook, so as to subject him to an action of covenant thereupon, unless executed by his authority, yet that the said Jonathan having authority by law as partner to sell partnership effects, his sale thereof was obligatory upon and passed the title of the firm, unless made in fraud of his co-partner to a collusive purchaser, and in any state of the case passed his own interest in the property.

And it further seems to the Court, that the County court did not err in refusing to give the instruction moved by the relator, as stated in his first bill of exceptions, in regard to supposed secondary evidence of the contents of a supposed written instrument, there having been in fact no evidence before the jury in relation to the contents or even existence of any such instrument.

And it further seems to the Court, that the bill of exceptions of the relator to the decision of the County court overruling his motion for a new trial has not been well taken, inasmuch as it sets forth the testimony of the witnesses, including those of the relator, instead of stating the facts proved by their evidence, and therefore, that the merits of that question are not presented by the record for the consideration of this Court.

It is, therefore, considered by the Court, that the judgment of the Circuit court, affirming that of the County court, is erroneous, and that the same be reversed and annulled, with costs to the plaintiff in error. And this Court proceeding, &c., it is further considered, that the judgment of the County court be reversed and annulled, with costs to the plaintiff, that the verdict of the jurors be set aside, and the cause is remanded to the County court for a new trial thereof, upon which new trial that Court is to govern itself, in any instructions to the jury, by the principles above declared? so far as the same may be applicable thereto.  