delivered the opinion of the court.
Without going into a statement of the facts pro and con developed in evidence in this case, we say that it is exceedingly close indeed on the testimony, to say the least of it, and presents such a condition that the court should have been exceedingly cautious in acting on instructions. In some cases the action of the court, on instructions would not be regarded as reversible, while in other cases reversals should be ordered. On the record before us we think it was error to grant the third instruction asked by the defendant, because that charge seems to adjudicate *654as matter of law that the sale under which the appellants claim! was a “pretended sale.” This seems to assume for the defendant below that this, the very sale on which he relied, was not a bona, fide sale. We also think, under all of the testimony in this case, that instruction No. 7, asked by the plaintiffs below, should not have been refused.
Reversed and remanded.