Smith v. Hamlet

43 Ark. 320 | Ark. | 1884

Smith, J.

This was replevin for a mare. The plaintiff, Hamlet, recovered a verdict in the Court of the Justice oí the Peace, where the cause originated; but no formal judgment was entered. On appeal to the Circuit Court there was a trial de novo upon the merits and the plaintiff again prevailed.

In Turner v. Harrison ante, 233, we discussed the legal effcet of the absence of a judgment by the Justice upon the jurisdiction of the Circuit Court, holding that it was not fatal and that the verdict of the jury was in that court equivalent to a judgment.

On the trial the plaintiff testified that the mare had once belonged to the estate of Van Wimberly, of which he had been Administrator, but had since made final settlement and been discharged; that the Probate Court had ordered the sale of all tlie personal property of the estate for cash ; that in pursuance of said order, he had exposed the property ■ on the 9th of April, 1881, and the mare being about to be sacrificed, he had caused her to be bid off iii the name of John A. Smith for $35., and had reported her to the Probate Court as sold to the said John A., at that price; that plaintiff had turned over the mare to said John A. to make a crop with, and said bailee had, in October or November 1881, sold and delivered her to R. S. Smith, the defendant in this action. The plaintiff also read a letter written by John A. Smith, after this last mentioned sale, in which the writer acknowledged that he was a mere bailee and expressed surprise that his father, R. S. Smith, had set up a claim to the mare.

The defendant proved his purchase from John A. Smith for a valuable consideration, and offered to read a transcript of the record of the Probate Court, showing the same state of facts to which the plaintiff had already deposed, viz: the order of sale, the sales-bill returned into court by the Administrator, in which John A. Smith is mentioned as the purchaser of the property in controversy, and the confirmation of the sale by the Probate Court. But the transcript was excluded from the jury. The court also refused the following prayer of the defendant:

“ If the jury believe from the evidence that said Hamlet, as Administrator, sold the mare in controversy as the property of Van Wimberly, deceased, and at such sale caused the mare to be bid off and set down to John A. Smith as the purchaser thereof, and that Hamlet as such Administrator reported said sale to the Probate Court, and said sale was examined and confirmed by said court, said Hamlet is now estopped from denying the truth of said record, and he cannot recover in this action.”

The verdict and judgment were for the plaintiff and a new trial was refused.

i e v i - vendor01*afí ter sale, The letter of John A. Smith, being in the nature of declarati°ns of a vendor, made subsequent to the sale and in the absence of his vendee, was certainly incompetent evidence to invalidate the sale. Gullett v. Lamberton, 6 Ark, 109; Brown v. Wright, 17 Id., 9, Clinton v. Estes, 20 Id., 216; Finn v. Hempstead, 24 Id., 111. But the introduction of it was not objected to below.

The record tendered to show that John A. Smith purchased at the Administrator’s sale, was the best evidence of that fact; and as the defendant derived title from him, it was pertinent to' the issue. The transcript seems to have b.een properly authenticated.

2. same: Probate Record of minis trator’s »aie. The instruction above copied should have been given to . ‘ ... ° ]ury. The administrator s report of sale is a solemn ad- ° ^ * mission that he had sold the mare to John A Smith for the price therein stated. And the plaintiff tis precluded from denying the truth of the record. He cannot show in this action that the transaction was merely colorable; that the purchase was in reality for his own benefit, or that Smith has never paid his bid. The defendant bought from one who was in possession and who, the record showed, was the legal owner.

Reversed and remanded for a new trial.