In October, 1924, appellee caused an execution to be levied on cotton in the seed as the property of Archie Giddy, defendant in the execution. Appellant interposed his claim. On the trial of the right of property which ensued, appellee, plaintiff in execution, had judgment.
Archie Giddy had raised the cotton on land rented by him, or by J. W. Giddy for him, from McCurley. Appellant contended that he had made advances to Archie Giddy, his son, and, further, that he had bought the cotton from Archie. In the course of its oral charge, the court expressed its doubt whether the evidence required any instruction on the relation between the Giddys of landlord and tenant. Claimant excepted. The court thereupon amended its instructions by saying to the jury, in substance, that, if Archie was J. W. Giddy's tenant for hire, the plaintiff in execution could not recover. We presume the court at first had in mind section 8807 of Code 1923. There was nothing in the case calling for this instruction. Appellant contends that the instruction in question was not applicable to the facts in the case. We might concur in that contention, but cannot agree that this instruction had a tendency to mislead the jury — at least no tendency to mislead to claimant's prejudice. The sum total of what the court said on this subject operated only to open the way for a verdict in favor of claimant as to which the jury found against him.
The court on plaintiff's request in writing charged the jury:
"If you find that Archie Giddy did in fact sell the cotton to J. W. Giddy before the levy, still, if the said Archie Giddy remained in possession of the same without a change of possession, then the sale alone would not authorize you to find for the claimant."
The retention of possession by the alleged vendor was presumptive evidence of continued ownership in him, subject to rebuttal by proof that the sale was a bona fide transaction. Hobbs v. Bibb, 2 Stew. 54; Martin v. White, 2 Stew. 162; Ayres v. Moore, 2 Stew. 336; Blocker v. Burness, 2 Ala. 354; Cummings v. McCullough, 5 Ala. 324; Millard's Adm'r v. Hall, 24 Ala. 209; Upson v. Raiford, 29 Ala. 188; Mayer v. Clark, 40 Ala. 259; Moog v. Benedicks, 49 Ala. 512; Crawford v. Kirksey,55 Ala. 282, 28 Am. Rep. 704; Teague v. Bass, 131 Ala. 422,31 So. 4; 1 Williston on Sales, § 354.
The refusal of charges 1 and 2, as we have marked them on the margin of the record, requested by claimant, was based upon a correct interpretation of the statute law as it now is. Section 8807, Code 1923.
The court in its oral charge instructed the jury in accordance with section 10377 of the Code. The question thus presented was one for decision by the jury; but it appears affirmatively from the record that no damages under this section were assessed.
Other assignments of error proceed upon the theory that claimant was entitled to prevail as matter of law. The evidence was in conflict, and these assignments are not well taken.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.