| Ala. | Jan 15, 1830
The plaintiff in error supposes the Circuit Judge to have erred in refusing the instruction first prayed for, and in giving the instruction he did in relation thereto. In some cases it has been holden, that when land has been sold under execution, the advertisement required by statute must be proven, and that it is an essential muniment of title to the purchaser; but this rule has never been applied to personal property; no paper evidence is necessary for the conveyance of personal property; title to real property is always supposed to be sustained by documentary evidence: perhaps this distinction sufficiently shews the reason of requiring proof that real property had been advertised, while it is not required of personal property,. We think then that-the charge of the Judge was right.
q^e gccon(j error assigned is, that, the Court charged the jury, that the amended return made by the sheriff at trial, on the execution under which the defendants purchased, related to the time when the original return was made. If the sheriff had sold the slave levied on and neglected to make the return on the execution required by statute, such neglect surely could not operate prejudicially to the purchaser; and the sheriff, as a ministerial officer, would be so far protected, as to be permitted to amend his return so as to make it true, at any time.
• The third error assigned is in relation to the possession of the property remaining with Wyzer. We believe that there was no error in refusing to give the charge prayed. There had been a great contrariety of decision on the question, whether the property remaining with the vendor after an absolute sale was fraudulent per se, or only a badge of fraud; but under the most rigid construction, a purchase made at sheriff’s sale was an exception to the rule of the possession being fraud per se; and the-law is now settled, that in no case, does the mere fact of possession remaining with the vendor constitute fraud, but that it is only a badge of fraud, from which the jury must draw the inference of its existence, if not rebutted or explained..
Exceptions were taken to the terms used by the Judge in his charge to the jury, such as “if they believed the evidence offered by the claimants of the property, then is their case made out.” It would be impossible for this Court to say whether there was error in this charge or not, unless we were informed what testimony had been introduced by the claimants. If the record does not shew enough to satisfy this Court that the charge was erroneous, we cannot presume such error. It is certainly competent for the Judge to sum up the testimonj*-, and nothing can be fairer, or more in the sphere of his duty, than for him to tell the jury, that if they found such facts proven, that the law was in favor or against a party plaintiff or defendant. We believe there is no error error, and that the judgment must be affirmed.