Epperson v. Crozier

85 P. 482 | Ariz. | 1906

NAVE, J.

The appellant, William Epperson, brought suit

in the district court of Mohave County to recover twenty-live hundred dollars alleged to be the value of mares and colts purchased by plaintiff from defendant on April 2, 1901, and “unlawfully converted and disposed of, to his own use, by defendant” in April, 1903, while still in defendant’s possession.

The first assignment of error is that the court erred in rejecting a paper offered in evidence by plaintiff, purporting to be a bill of sale dated April 2, 1901, signed by defendant, whereby defendant sold to plaintiff, “all mares branded ‘DR’ on left hip and all sucking colts for the sum of $200,” purchaser “agreeing to take them all off the range within six months from date.” This instrument was not acknowledged, and was objected to by defendant upon that ground alone. The objection was sustained. Act No. 6 (p. 9) of the legislature of 1897, was in effect at the time of the execution of this bill of sale. Section 57 (p. 28) thereof provides as follows: “Upon the sale, alienation, or transfer of any horses, mules, asses, or neat cattle by any person in this territory, the actual delivery of such animals shall be accompanied by a written bill of sale from the vendor or the party selling to the party purchasing, giving the number, kind, marks and brand of each animal sold and delivered, which bill of sale shall be signed by the party giving the same, and shall be acknowledged by him as his act and deed before some officer authorized under the laws of the territory to take acknowledgment of deed of conveyance; and upon the trial of any person charged with the theft, unlawful possession, handling, driving or killing of any such animal as is mentioned in this section, the possession of such animal by the accused without his having a duly written and acknowledged bill of sale therefor, such as is required by the provisions of this section, shall be prima facie evidence against the accused that such possession was illegal. . . .” Section 55 (p. 27) of the same act is as follows: “No person owning or claiming shall in originally marking or branding horses, mules, asses, or neat cattle, make use of or keep up more than one mark or brand; provided, that any person may own or possess such animals Jn many marks and brands, the same having been by him acquired by purchase or any other lawful manner, and bills of sale in writing, properly acknowledged by the previous owner or owners of the animal or animals having such brands, or from the heirs, executors, administrators, or legal representatives of such owner or owners, shall be sufficient evidence of such purchase. . . The penalty of being prima facie a thief is attached to one who purchases and takes possession of animals enumerated in the act without having a bill of sale complying in all respects with the requirements of the act; and a bill-of sale complying with the act carries with it proof of its execution, and is made “sufficient evidence” of such sale; but that a bill of sale of such animals must be acknowledged, and otherwise must comply with the provisions of section 57, supra, in order that it may he admissible as evidence of a sale, is not expressly prescribed. Such a rule of evidence should not be based upon implication. The objection to the introduction in evidence of this paper went only to its failure to comply with the section of the statute in question. This objection should have been overruled, and the instrument received.

It is unnecessary to consider the other assignments of error.

The judgment iS' reversed, and the case is remanded to the district court for a new trial.

KENT, O. J., DOAN, J., and CAMPBELL, J., concur.