OPINION OP THE COURT.
McFIE,J.1
2 The first issue for this court to determine is that relating to the validity of the bill of sale. Appellants contend that what purports to be a bill of sale, was intended to be a mortgage. Upon this issue the plaintiff testified that the bill of sale was given as an absolute purchase; that he took immediate possession of the property by placing one Pinckney, as his agent, in charge of it, and although the property remained in the same room as before, he saw Cooper deliver the key to Pinckney, and that he arranged' with the agent of the owner of the room to pay the rent. The plaintiff is corroborated by Pinckney and by Fisher, the agent of -the owner of the building, and there is no evidence to the contrary. The contention of defendant’s counsel, that the, possession of the property did not change from Cooper to the plaintiff can not be sustained. Even if the possession did not change, it is-only prima facie evidence of fraud, which may be rebutted by proof showing the bona fides of the transaction, which was done in this case. Warner v. Norton, 20 How. 448; Crawford v. Neal, 144 U. S. 585. Cooper’s claim that the property seized was exempt property, has an important bearing in this case. Defendants attached the property as that of Cooper, the plaintiff not being made a party to the suit. Cooper gave the defendants notice in writing that he claimed the property as exempt he being the head of a family; that he had no homestead; that the property seized did .not exceed in value three hundred dollars, and that he had no other property except such as was specifically exempt such as household goods and wearing ap-pare!. Section 1753, Compiled Laws 1897 is as follows: “Any resident of this Territory who is a head of a family, and not the owner of a homestead, may hold exempt from levy and sale real or personal property to he selected by such person, his agent or attorney, at any time before the sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.”
This notice and claim seems to comply with the requirements of the statute and it had the effect of making it the duty of the defendant Smith, the officer in charge, to ascertain the amount and value of the property by ap-praisement as required by section 1745, Compiled Laws 1897, which provides: - “In all cases where it is necessary to ascertain the amount or value of personal property exempt under this act, it shall be estimated and appraised by two disinterested householders of the county, to be selected by the officer holding the execution or attachment, and by him sworn to impartially make such appraisement.”
3 So far as the record discloses the defendant sold the property without any attempt to ascertain the ampunt and value thereof. The rights of Cooper as against the defendants can not be adjudicated in this case, but this claim of exemption, taken in connection with his testimony to the truth of his claim and exemption, serves to remove any fraud in connection with the execution of the bill of sale. There being no proof, or offer to prove, that the property was not exempt, for the purposes of this case, it must be conceded that the property conveyed by the bill of sale and seized and sold by the defendants, was, at the time, exempt by law from seizure and sale. There could be no fraud in Cooper's disposing of his exempt property as he saw fit, for it was not subject in any event to forced sale for the payment of the debt of the defendants, Bell & Company. It is immaterial that the bill of sale was not acknowledged; it Avas good between the parties, and so far as it relates to exempt property, it is good as to all other unsecured creditors, as they are not in a position, legally, to complain. The defendants were not injured, as they were not placed in any worse position than before. The assignment of error, that the court took an issue of fraud from the jury, can not be sustained. Machette v. Wanless, 2 Colo. 169; Crane v. Chandler, 5 Colo. 21; Hanselt v. Hanison, 105 U. S. 401; Liggett & Myers Tobacco Company v. Collier, 56 N. W. 417; Tannehill v. Tutle, 61 Amer. Decs. 480; Carver v. Chapell, 37 N. Dak. 879; Ruppell v. Lennon, 39 Wis. 590; Stewart v. Brown, 37 N. Y. 350; Skinner et al. v. Shannon, 6 N. W. 108; Pronet v. Vaugh, 52 Vt. 451; 1 Shiner on A., secs. 111 and 112; Wymas v. Wilmarth, 46 N. W. 193; First Nat. Bank v. North, 51 N. Dak. 99; Anderson v. Odell, 51 Mich. 492; Tracy v. Coover, 28 Ohio St. 61; Arthur v. Wallace, 8 Kan. 267; Waite v. Mathews, 15 N. W. 524; 12 Am. and Eng. Ency. Law, pages 208, 221, 225.
4 It is objected that the court erred as to the measure of damages. The consideration expressed in the bill of sale is three hundred dollars. If the bill of sale should have been held to be in the nature of a mortgage as defendant’s counsel contend, then the mortgage debt of $300 and not the value of the property, would be the correct measure of damages, and this was the amount the court directed the jury to find. So if defendant’s contention that the bill of sale was a mortgage is correct, they can not object to the damages, as there was no disputed question of fact as to that; the bill of sale fixed the measure of damages as they were assessed. We can not agree with the contention that the bill of sale was a mortgage, but are of the opinion that it was an absolute sale with a change of possession to the purchaser, and the measure of damages would be the value of the personal property at the time and place where taken, together with damages sustained by reason of the unlawful detention- thereof. Compiled Laws 1897, section 2738.
Tbe record shows that the plaintiff was proceeding to prove the value of the property and damages for detention thereof, but as the defendants’ counsel objected to such proof and the court sustained the objection, the plaintiff was prevented from making the desired proof. The court erred in sustaining the objection to this proof, but as the error was induced by the defendants, they can not be permitted to take advantage of it in this court, and it is therefore harmless and not reversible error. 2 Ency. of Pl. and Prac., pages 516-519.
The record shows that after the court had instructed the jury to return a certain verdict which was handed them by the court and which was no doubt signed at once, the counsel for defendants made certain offers of proof by the way of making up a record. These offers therefore were not considered in the lower court and can not be in this.
5 Ordinarily the assessment of damages is for the jury and not for the court, when the same is a disputed question of fact. Under the verdict in this case, the judgment being in the alternative, that the defendants return the property or pay the damages, it is not clear that the above rule applies to the extent of making error in assessing damages reversible error, as it would seem that the right to return the property in case the damages are excessive is sufficient protection, and if the defendants retain the possession of the property by giving a bond under the statute, as seems to have been done in this case^ and disposes of the property so that restitution can not be made if ordered, by the court, the litigant must abide the consequences of his own action although the result may be to deprive him of the benefit of the alternative protection.
The court being of the opinion that the bill of sale was accompanied by an actual delivery and-change of possession of the property conveyed by it; that the property conveyed was the exempt property of Cooper who executed the bill of sale, and that even if the bill of sale were held to operate as a mortgage, tbe property itself Avould not be subject to levy and sale, absolutely, without a tender at least of the value of the mortgage debt to the mortgagee. Therefore, the appellants have no right to recover in any event, and, therefore, it would be the duty of the court to set aside a verdict if the same had been rendered in favor of the defendants upon a trial in this case. This court has repeatedly held that under such circumstances the court may without error direct a verdict for the opposite party. Candelario v. Atchison, Topeka & Santa Fe Railroad Company, 6 N. M. 266. That the court directed a verdict for the appellee in this case was not error under the facts disclosed, and, there being no reversible error in the record, the judgment of the court below is affirmed with costs.
. Mills, C. J., Parker, McMillan and Baker, JJ., concur.