15 Iowa 119 | Iowa | 1863
Several instructions were asked by defendants and refused by the Court, and of these rulings
The instruction thus given reads as follows, viz.: “ Before the jury can find any damages for defendants, they must be satisfied from the evidence, not only that the property replevied was the property of Reddington, but, also, that defendants, King and Lumerty, have, and had at the time of the levy, a valid unsatisfied judgment against Reddington; and to prove said judgment, defendants must produce the best evidence, that is, they must produce the record of said judgment, or a certified copy thereof, or account in some satisfactory manner for its absence. The execution offered is not competent evidence of the judgment, nor of the amount, date, validity or regularity of the same.”
The verdict of the jury was as follows: “We, the jury, find the right of possession in the plaintiff, and assess the damages at one cent.” The possession of the property, at the date of the levy was conceded to be in the plaintiff. It is conceded, also, that her title thereto was acquired by purchase from Reddington. Being thus in possession, and having offered evidence to prove her purchase, she had made a prima facie case. The burden of proof was then with the defendant, to show the sale a fraudulent one. If the sale was fraudulent, then' the Sheriff would have been compelled to show by what right he held the property. This he could do by the writ of execution and the levy thereon.
The possession of plaintiff, when once established as being fraudulent, the defendant would be entitled to a return of the property, upon the introduction in evidence of the writ of execution, and of his levy thereon, without being
The instruction given, therefore, properly stated the law that should govern in such a case.
But if erroneous, we cannot see how defendants were prejudiced thereby. The main issue in the case was, whether the sale to plaintiff was fraudulent. The defendants having failed to establish this fact, their case falls to the ground. The question as to the amount of defendants’ damages was of a secondary character. No damages could be assessed until it was shown that plaintiff’s possession was fraudulent.
Affirmed.