We deem it scarcely neccessary to refer to authority, in order to determine that the property in question was personal, and properly tho subject of suit in the form of action adopted by tho plaintiff. The liberal and least erring rule of modern jurists, namely, that whatever is necessarily connected with the freehold by the tenant, for the purpose of carrying on the trade or business for which it has been demised to him, does not thereby “attach” to the realty, hut remains the chattel or fixture of the out-going tenant, is believed to apply too obviously and plainly to this transaction, to need either elaboration or elucidation. Upon this view, therefore, of the law and the testimony, the Circuit Court might have proceeded even farther than it did in the aggregate bearing of its instruction for the plaintiff, and yet have remained exempt from error upon that score.
The right of the plaintiff to the property sued for seems also to have been properly found by the jury, under such instructions and such testimony as the defendants, at least, cannot complain of. To say nothing of the acknowledgment before the justice, and the recording of the conveyance on the same day, except that we perceive no objection that it was sent to the jury for at least what it was worth, the testimony of Mathews (called subsequently) could leave no reasonable doubt upon the minds of tho jury that the bill of sale was the act and deed of Saunders; and it being also in testimony by other witnesses that the property was cotemporaneously delivered to the plaintiff by Saunders, and that the sale was cotemporaneously assented to by Hague, the title of Watkins may well have been deemed complete and conclusive against the arrangement subsequently made between the defendants and Hague, and this, whether there had been a partnership between Saunders and himself or not.
It will be perceived that we have reached the foregoing conclusions irrespective of the supposed testimony of Lee, whose depositions, for aught that appears to the contrary, was rightfully excluded from the jury. His interest, even as apparent upon the face of tho transfer from Hague to the Finneys would seem of itself to disqualify him from testifying generally, but whether or not, the record is not so presented here as that this court can see that the court below erred in excluding his testimony. As neither the deposition itself, nor the substance of it, is preserved in the bill of exceptions, we cannot know either what facts it essayed to establish, or what admissions (of interest, possibly), it may have of itself contained ; and the legal presumption being in favor of the correctness of such adjudications as are predicated upon inspection in the court below, we cannot, unless that-presumption be rebutted by a presentation of all the facts upon which it may have proceeded, either review or reverse its judgment. The duty of showing this, it need scarcely be added, devolves upon the party complaining.
The question whether the Finneys were in the possession and wrong-ful retention of the plaintiff’s property, seems also to have been properly committed to the jury under the instructions of the court, the additional instructions asked by the defendants being, to say the least of them, ambiguous or unnecessary. The whole case, in short, seems to have been conducted not only with legal fairness but with an apparent liberality towards the defendants, and we consequently perceive no reason for trying the case anew. The judgment of the Circuit Court is therefore afflrmed.(a)
(a) Hunt v. Mullanphy, 1 Mo. R. 512, and note.