Stone v. Waggoner.

Parol evidence is inadmissible to establish a written contract — the writing itself must be produced — Parol evidence may then be introduced to prove the transaction free from fraud.

If one purchase personal property, as a mule, bona fide at sheriff 5s sale, and take it into possession, and afterwards lend it to the execution debtor, this does not constitute fraud. Field vs. Simco, 2 Eng. R. 269.

In trover it is essential to prove a conversion by the defendant, and title in the plaintiff, in order to recover.

*205 Appeal from the Circuit Court of Independence County.

This was trover brought by Robert Waggoner against Wm. Stone for a mule, determined in Independence, before Hon. Wm. Conway B, then one of the Circuit Judges, in February, 1846. The cause was tried by a jury upon the plea of not guilty. The plaintiff proved by Noland, that he, in the winter of 1844-5, sold the mule to plaintiff, for $50, paid by cash and note: at the sale one Henton had the mule in possession and to whom witness had lent him. The witness authorized the plaintiff to take the mule into possession, nothing being said about a bill of sale; afterwards a bill of sale was executed and delivered. In March, 1844, witness had bought the mule at sheriff’s sale as the property of Henton. He had told Henton before the sale that he could redeem any property that the witness should purchase; after the purchase, and after he had been in possession of the mule several days, Henton applied to borrow the mule and received it, with authority to use, but not to dispose of it in any manner, nor was there any fraud in the lending; nor was there any fraud between any of the parties to witness’s knowledge. This was the plaintiff’s testimony. The defendant proved by the constable that in the spring of 1845, having an execution against Henton, he levied on the mule which he found hitched to a trough at Henton’s residence. After the levy, Henton handed him a notice signed by the plaintiff that the mule belonged to plaintiff, and he claimed a trial of the right of property, which being granted, the jury found the mule subject to the constable’s levy, and he accordingly sold it in due form of law, and the defendant purchased. That before the levy Henton exercised acts of ownership over the mule, and used it as his own. It was proved also by another witness that Henton had possession of and used the mule as his own. This was all the proof. The defendant moved to exclude the oral testimony of plaintiff, and confine him to his bill of sale. This motion was overruled, and the court decided that the bill of sale constituted no part of the plaintiff’s evidence of title: and that the plaintiff might well prove his title orally, regardless of the bill of sale. To these instructions the defendant excepted.

*206The plaintiff moved the following instructions: That if the purchaser at sheriff’s sale, had possession after a bona fide purchase, and afterwards lent the mule to Henton, this was no fraud. That the plaintiff knowing where the mule was when he purchased, and agreeing to take it as it was, was a sufficient delivery. Both diese instructions were given and the defendant excepted. The jury found for the plaintiff and assessed his damages at $50. The defendant moved for a new trial — was overruled — and appealed.

Byers & Patterson, for appellant.

Oldham, J.

The motion of the defendant to exclude the parol evidence given in support of the plaintiff’s title to the mule in controversy, after it appeared that a bill of sale had been executed, should have been sustained. It is a familiar elementary principle and strictly applicable to this case, that parol evidence is inadmissible to establish a contract which has been reduced to writing. Greenleaf on Evidence, 99. The writing itself should have been produced to establish the plaintiff’s title; afterwards, Noland would have been a competent witness to show that the transaction between him and Waggoner was in good faith and not tainted with fraud. The court correctly instructed the jury “that if Noland had possession of the mule after a bonafide purchase at sheriff’s sale and afterwards loaned tire same to Henton, that it did not constitute fraud in law.” This point was determined in Field v. Simco, at the last term of this court, 2 Eng. R. 269. The correctness of the second instruction was determined in Cocke v. Chapman, 2 Eng. R. 197, and Field v. Simco, supra.

The motion .for a new trial should have been sustained. There was no evidence whatever of a conversion by the defendant. It is as essential to a right of recovery, to prove a conversion by the defendant, as it is to prove the plaintiff’s title to the property.

Conway B, J., did not sit.