131 Ala. 568 | Ala. | 1901
The question whether the alleged sale to Ward was an absolute and unconditional sale depended upon the facts and circumstances of the transaction including the bill of sale, and was not determinable by the opinion of the witness W. T. Ward. So; too, whether any interest was reserved to the seller depended upon the terms of the bill of sale and deductions to be drawn from what the parties did with reference to the property afterwards; and it was not for said witness to state his conclusion or opinion that the sale was without any reservation of interest to the seller. The court properly excluded tire statement referred to of the witness W. T. Ward.
There is a stipulation in the bill of isale that the seller is to retain possession of the property until it should be demanded of him by the purchaser or his agents, etc. This rendered the sale prima facie fraudulent as to existing or subsequent creditors under section 2150 of the Code. See authorities there cited. The evidence on the part of the plaintiff in attempted explanation of this retention of possession by the seller offered to overturn the prima facie presumption of fraud was all oral, as was also the evidence in rebuttal. Considering all this evidence as it is reproduced here in writing we are not satisfied that it removes the presumption of fraud arising from the stipulation referred to. And when we consider further that the judge of the county couirt had opportunities and means of reaching a correct conclusion on the evidence which we have not, had before 'him indeed other evidence than that now before us in the manner and appearance of the witnesses on the stand, etc., and apply the doctrine of Woodrow v. Hawving, (105 Ala. 240), we are far from being able to say that his conclusion of fact that as to the defendant the sale by Anderson to Ward was fraudulent and void was plainly erroneous. And so the judgment rendered by the judge below sitting without a jury must be
Affirmed.