#### Andrew K. Haberer v. Frank W. Walzer.

1. Replevin—Sufficient Possession to Sustain.—Plaintiff bought live stock and other personal property of a tenant on his farm who was about to vacate his tenancy, left them on the farm, going there frequently to attend them, and later hired a person for that purpose. Held, that there was a change of possession sufficient to sustain an action of replevin on the part of the purchaser, for the stock, when execution upon a judgment against the vendor was levied upon it.

2. Evidence—Note, Mortgage and Cheek in Payment, Admissible to Show a Parchase Not Colorable.—Where a party assumes and pays a chattel mortgage in payment of a purchase, but takes an assignment of the note to himself instead of having the mortgage released, the note, mortgage, and the check with which he paid the holder thereof, are admissible in evidence to show that the purchase was not colorable, where such assignment and giving of check were a payment of the debt and operated to discharge the mortgage.

3. Fraud—Must Be Proved.—Fraud can not be presumed, but must be proved by a preponderance of the evidence.

Replevin.—Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge presiding. Heard in this court at the October term, 1902.

Affirmed.

Opinion filed April 21, 1903.

F. E. Andrews and G. A. Stultz, attorneys for appellant.

C. L. & C. E. Sheldon, attorneys for appellee.

Mr. Justice

Dibell

delivered the opinion of the court.

On November 30, 1901, John U, Harpham recovered a judgment by confession against Tribbey J. Stiekell in the Whiteside Circuit Court, and sued out an execution upon said judgment and placed it in the hands of Andrew K. Haberer, sheriff of said county. On December 26, 1901, the sheriff levied said execution upon certain horses, cattle, farming utensils, hay, straw and oats, as the property of Stiekell. The next day Frank W. Walzer brought this action of replevin against the sheriff to recover said property, claiming to own the same. Pleadings were filed which raised the issue whether plaintiff or Stiekell owned the property. Upon a trial the issues were found for plaintiff, and he had judgment, and defendant appeals.

*372Plaintiff lived in Sterling and owned a farm in the town of Hume in Whiteside county. Stickell was his tenant under a lease expiring March 1, 1902. In the preceding fall it was decided that Stickell should leave the farm at the end of that term, and that plaintiff and plaintiff’s brother would thereafter conduct it. Plaintiff claims that about the last of September, 1901, he bought from Stickell most of the horses, cattle, farming tools, and all the hay, straw and oats he had on the farm, for $1,060, then paid or assumed. Shortly thereafter plaintiff bought about thirty-four head of cattle elsewhere, and placed these also on the farm. Defendant as sheriff levied the execution in question upon all the property plaintiff bought of Stickell and also upon a part of the stock plaintiff had bought elsewhere. It is conceded plaintiff owned the cattle he had bought elsewhere, and was entitled to recover them in this action. But as to the property plaintiff bought of Stickell defendant claims, first, that the transaction was colorable only, and for the placing of Stickell’s property beyond the reach of his creditors; and, second, that if plaintiff bought and paid for the property in good faith, still the sale was void and fraudulent in law as to creditors of Stickell for the lack of a change of possession.

We regard the proof as clear and uncontradicted that plaintiff bought the property of Stickell and paid for it. There is nothing to indicate the price was other than its full value. There is nothing to show that when plaintiff bought he knew Stickell owed Harpham, or owed any other debts except one to himself which was settled in this transaction, and a note for $500 secured by a chattel mortgage on part of the property plaintiff bought, which note plaintiff assumed, and took up before the levy. We find nothing in the proof indicating plaintiff was acting in bad faith or in fraud of Stickell’s creditors.

After plaintiff bought this property he came to the farm often, sometimes daily, sometimes two or three times a week, and looked after his stock when there, but for a time all further care, if any was given the stock, seems to have *373been taken by Stickell. About the last of October or first of November, plaintiff hired one Williams, and sent him to" the farm with directions to take possession of all the personal property on the farm, to feed and care for the stock, to build about sixty rods of new fence, repair old fences, dig out stumps, cut down bushes, husk corn, etc. Williams went to the farm, took care of the stock, and did this work for about a month. He was exclusively in plaintiff’s employ and under plaintiff’s direction. He boarded with Stickell’s family, but plaintiff paid for the board. While Williams was thus engaged Stickell was absent most of the time, running a corn sheller and shelling corn for others. Why Williams was directed to husk corn does not appear. Plaintiff was entitled to a share of the crop on the farm for his rent, but the lease was not in evidence, and there is nothing to show who was required to husk the corn by the terms of the contract. All the other work Williams did was to take care of the personal property on the farm, and prepare the place for the farming operations of the next year. About the first or middle of December Williams left. Plaintiff then hired one Moresy to work for him on the farm all winter. Moresy took care of this property and did other work for plaintiff a week or ten days and then became dissatisfied with his earnings, and left a few days before the levy. Prom that time on until the levy plaintiff came to the farm every two or three days and sometimes daily, and when there looked after all the stock, including that bought of Stickell, counted them to ascertain they were all there, salted them, saw that they had sufficient water in the tank, that none of them were sick, etc. The stock seems to have been running out at that time, and it is not shown that Stickell did anything to them after Moresy left, or indeed that Stickell had had anything to do with plaintiff’s personal property on the farm after Williams came there to take possession and charge of it the last of October or the first of November. Stickell’s family still lived in the house on the farm, and Stickell was there in person more or less, and *374it may be his lease gave him the right to the exclusive possession of the land till the first of March following, but these facts do not prove plaintiff did not have possession of his own personal property on the farm. Certainly he was in possession of the thirty-four head of cattle he bought elsewhere and brought to the farm that fall and kept there till the levy, and his possession of them was of the same character as his possession of the property bought of Stickell. Whether the lease allowed him to have his stock and other personal property on the farm, or whether it was kept there under some later or other arrangement, does not appear and is not material. The fact seems to be that Stickell had substantially completed his farm work for that season, was going to leave on March first, and was working for himself elsewhere, and plaintiff bought much of Stick-ell’s property, brought other stock there, and had his men care for his stock and do work on the farm preparatory to carrying on the place the next year, and all of this was with the entire acquiescence of Stickell. We would not be warranted in disturbing the conclusion of the jury that plaintiff had possession of the personal property he bought of Stickell.

Before the levy plaintiff paid the holder of the chattel mortgage the sum due him, but instead of having the mortgage released he took an assignment of the note to himself. It is argued the court erred in admitting in evidence for plaintiff the note, the mortgage, and the check which plaintiff paid the holder thereof. If, as defendant contends, this was a"payment of the debt and operated to discharge the mortgage, plaintiff had a right to introduce these instruments to show that the purchase was not color-able as defendant asserted, but there was in fact such a debt as he testified he had assumed as part of the purchase price of the property, and that he had paid it as agreed. The court at defendant’s request instructed the jury in effect that this was a payment of the debt by plaintiff and that they should not take the chattel mortgage into consideration in arriving at their verdict. There was no error *375in admitting in evidence these instruments, and it is unnecessary to determine plaintiff’s further contention that if it was not payment, he could recover in this suit by virtue of the mortgage.

It is argued the court erred in instructing the jury at plaintiff’s request that fraud can not be presumed, but must be proved by a preponderance of the evidence. This was a correct statement of the law. (Wright v. Grover, 27 Ill. 426; Schroeder v. Walsh, 120 Ill. 403.) The jury could not have understood therefrom that fraud must bo proved by direct instead of circumstantial evidence, for the instruction does not say or imply anything of that kind. The jury could not have understood that a retention of the possession by the seller was not proof of fraud, for the court, after a modification which did not change the meaning, gave an instruction requested by defendant, as follows:

> “ The court instructs the jury that any sale of personal property, when it is permitted to remain with the vendor, if it is of that character or quality of property that it is capable of being removed or having a change in the possession of it made, and the purchaser does not take possession thereof, is fraudulent in law as to creditors and subsequent purchasers, notwithstanding the sale may be in good faith and for a valuable consideration.”

Another instruction of like import was given. We have considered the other rulings of which complaint is made and find no reversible error in the record.

The judgment is therefore affirmed.