Apfel v. Crane, Boyleston & Co. , 83 Ala. 312 ( 1887 )

SOMERVILLE, J.

— 1. The two bills of sale purporting to be executed by Broda — the one to. Nathan Apfel, the claimant, and the other to his father, S. B. Apfel — were properly excluded from the jury. They were no part of the deposition of the claimant, although inclosed- in the same envelope with it. They had no marks of identification on them, and no description was given of them in the deposition by way of reference, such as would constitute these documents exhibits to the, deposition. To admit in evidence important papers of this nature, with so great lack of certainty iu identification, would be productive of great looseness of practice, and of manifold frauds in testimony.

There was still another reason which justified the exclusion of these bills of sale, even after the signature of the grantor was proved. It did not appear, either from the face of the papers, or from any other evidence offered, that they covered or transferred the property in controversy. We may go further, and say, that nothing appears in the evidence from which this could be inferred by the jury.

2. The plaintiffs in execution made out a prime t facie case, when they proved the existence of their debt, and that the defendant in execution, Broda, was in possession of the property in controversy. The onus was then devolved on the claimant to establish a valid title in himself as against the plaintiffs. — Jones v. Franklin, 81 Ala. 161; Foster v. Goodwin, 82 Ala. 384. This could be done only by showing a purchase of the goods — that the claimant had bought and paid a valuable consideration for them before the levy was made under the plaintiffs’ execution. — Kyle v. Ward, 81 Ala. 122; Spira v. Hornthall, 77 Ala. 137. The written charge given at the instance of the plaintiffs asserted, in effect, nothing more than these principles, and was free from error.

We discover no error in the record, and the judgment is affirmed.