Volusia County Bank v. Bertola

44 Fla. 734 | Fla. | 1902

Per Curiam.

‘This cause having been referred! by the court to- its commissi oners dor examination, they report that the judgment should be reversed; and after due consideration of the same upon the transcript of the record, the abstracts having been excepted to, the court is of the opinion that the judgment should be reversed on the ground hereinafter stated in this opinion.

Defendant in error filed with the sheriff of Volusia county a claim affidavit alleging that certain personal property therein particularly described, and levied upon by the sheriff by virtue of two executions in favor of the Volusia County Bank against one J. E. Bigelow, belonged! to affiant. Claimant filed bond and the property was delivered to him, and upon the trial of the right of property a verdict was rendered in his favor, upon which final judgment was entered. The bank sued out writ of error to this judgment. #

The first twenty-two assignments of error relate to the rulings of the trial court as t-o the admissibility of evidence, or to the giving or refusing to give certain requested instructions to the jury. Upon an examination of the transcript we find that none of the questions sought to be presented by these assignments are so presented by the bill of exceptions that we can -consider them. Where questions to witnesses are ruled1 out as not being in cross, there is no statement in the bill showing the scope of the direct examination; where testimony is offered and excluded there is no statement in •the bill showing its relevancy to the case; where complaint is made of giving a charge or refusing to give those requested, there is no statement of facts upon which they were predicated, and on this account the alleged errors can not be considered. Jacksonville Street Railroad Company v. Walton, 42 Fla. 54, 28 South. Rep. 59.

The twenty-third assignment is that the court erred in refusing ‘to instruct the jury, at the request of plaintiff in error, that they might take into consideration the interest of any witness in the result of the case, and give his evidence such weight under all the circumstances as they should' think it entitled to. This request was refused by the court on the ground that it was an invasion of the province of the jury. There is no statement of facts given in the bill of exceptions upon which- this request was predicated, but assuming, under the decision in Jacksonville Street Railroad Company v. Walton, supra, that it is of such a character that it may be considered in the absence of such statement, as are of opinion that on the showing made there would be no error in refusing the charge. As a general rule a trial court is not compelled to inform the jury that they may consider this fact, of that fact alone, or may infer a certain formulated conclusion from an isolated fact, in arriving at a verdict on the evidence submitted to them. Such cautionary directions, while permissible and required in some cases, may generally be omitted. Langford v. State, 33 Fla. 233, 14 South. Rep. 815; Lang v. State, 42 Fla. 595, 28 South. Rep. 856; Anthony v. State, 44 Fla. 1, 32 South. Rep. 818; Olds v. State, decided at this term. It was held in Hunter v. State, 29 Fla. 486. 10 South. Rep. 730, that it was error under the facts of that case to refuse to instruct the jury that they had the right to disbelieve the evidence of any- interested witness upon no other ground than the fact -of interest, but a consideration of the evidence in that case showed it to be of su-cih character that the court might very properly have given the requested instruction. There were other grounds for reversing the judgment in that case, and this court expressed a serious doubt as to the sufficiency of the evidence to sustain the* verdict. The reason assigned by the trial judge for'refusing the instruction in the present case may not be correct as an abstract rule under the decision in the Hunter case, but in the absence oi any lr\ pothecation of the evidence we are of opinion that error does not appear in the refusal to give the instruction.

The twenty-fourth assignment of error, based upon the refusal of the court to give the twenty-second charge requested by plaintiff in error, is not argued, and, therefore, considered as abandoned.

The twenty-fifth and last assignment of error is that the court erred in denying the motio.n for a new trial, and under this assignment it is insisted that the verdict is not sustained by the evidence. After a careful consideration of the evidence shown by the evidentiary bill of exceptions we. are of the opinion that the court erred in denying the motion on the ground stated. Defendant in error claimed to have purchased the property in question from one Bigelow prior to the levy of the executions in favor of plaintiff in error, and the defect in the testimony to sustain a verdict in favor of the claimant, defendant in error, is that it fails to sufficiently show a change of the possession of the property on the part of Bigelow after the sale.^ The rule staled in Gibson v. Love, 4 Fla. 217, is that where the vendor of personal property retains possession after the sale, fraud is to be inferred, unless there is evidence not of a general character negativing a fraudulent intent, but of a character to explain possession; that (he presumption of fraud in a ease where the vendor, remains iu possession is so strong as to outweigh positive testimony of an entire absence of all fraudulent intent, or even to establish a fraud, where the jury ace satisfied that there was none actually intended. The subsequent decisions in Holliday v. McKinne, 22 Fla. 153, and Briggs v. Weston, 36 Fla. 629, 18 South. Rep. 852, were not intended to lay down any different rule, and in the latter it is stated that where, the vendor of personal projx'rty continues in the possession of same, the burden rests upon the vendee to show that such possession is either consistent with the deed, is unavoidable, temporary, or for the reasonable convenience of the vendee, and that in the absence of evidence explaining the possession, a verdict sustaining the sale would be contrary to the evidence. A more accurate way of expressing the rule is that it devolves upon the vendee to show that the possession of the vendor is either consistent with the deed, is unavoidable, or temporary for the reasonable convenience of the vendee, and in the absence of such showing the sale .will be regarded, so far as third parties are concernéd, as fraudulent in law. As to third parties the testimony in this case does not, in onr judgment, show a change of the possession of the property on the part of Bigelow after .the alleged sale— that is, that there was any visible change of same status of the property after sale—and there was no attempt to explain the possession so as to bring it within the rule announced”. •'

The judgment will be reversed: and a new trial awarded,, and order to be entered accordingly.