delivered the opinion of the Court:
A reversal of this judgment is urged, upon the ground that erroneous instructions were given to the jury. The case was an action of replevin, by plaintiff in error against the sheriff, for divers articles of personal property which had been seized on an execution against Amos Duffield, of whom plaintiff in error claimed to have purchased them. It was insisted on the trial below, that the sale was only colorable, and made to hinder and delay creditors. It devolved upon plaintiff in error to establish title to the property before he could recover, and if he established a prima facie title it was necessary to be rebutted, to prevent his recovery.
It appears that the purchase was made, but it was insisted that possession did not accompany the apparent ownership, and that the vendor continued to retain possession, as though the sale had not been made. On the contrary, it was claimed, that there was a delivery in fact. This seems to have been the main point in controversy. It was also insisted, that there was no consideration to support the sale, which was controverted. And for the purpose of raising a presumption of fraud, the defendant in error attempted to show that Amos Duffield was in failing circumstances.
The first instruction given for the defendant below, informs the jury that Ihe plaintiff was bound to prove to their satisfaction, by affirmative evidence, that the title to the property in controversy was in him, before he could recover. It is supposed, that the court below intended to instruct the jury that the fact must be proved by sufficient and not by affirmative evidence, as it does not matter, whether a fact is established by affirmative or negative evidence. The proof is what is required, and not the character of the evidence, so that it is legitimate and to the issue. But the effect of this instruction was to mislead the jury, and it should have been modified before it was given.
The third instruction assumes that Amos Duffield was in failing circumstances, and informs the jury that it is a circumstance, together with the relationship of the parties, proper to be considered in determining whether the transaction was fraudulent. Whether he was in failing circumstances or not, was for the determination of the jury, and not for the court, from a consideration of all the evidence in the case. The two facts, if established, would undoubtedly be evidence in the case, but its weight would be increased or lessened by other circumstances. A man who is laboring under pecuniary embarrassment, may undoubtedly sell property to a brother, if the intention is not to defraxid creditors, and the object of the sale must be inferred from the whole of the evidence in the case.
In the seventh instruction given for defendant below, the court assumes that the sale was a transfer of every article of the property in possession of Amos, without any remuneration whatever. This seems to settle the whole controversy, for if there was no remuneration to Amos for the property, the sale was without consideration, and was necessarily void, as to creditors. This was one of the material and highly important questions being tried by the jury, yet the instruction seems to relieve them from its consideration. When that fact was taken as established, the jury could only find the verdict which they returned. And we must suppose they obeyed the instruction, and if so, the instruction took the question from their consideration. The question should have been left to them.
The judgment of the court below is reversed, and the cause is remanded.
Judgment reversed.