M. & E. J. Iglehart v. Downs

There is no such error in the charge and rulings of the Court, upon the law, (if there be any at all,) as to *245cause a reversal of the judgment. The material question is— Did the Court err in overruling the motion for a new trial ? Both parties prove facts which would constitute a good title to the oxen. Whose title was the oldest is the real point of controversy. On most other parts of the case there is a conflict of testimony. On this there is none. It is shown that Howard & Iglehart, through whom appellants derive title, were in possession of the oxen in the Spring of 1852, under an agreement of sale from William Peters, the father; and that Lavassa, through whom appellee derives title, got possession of the oxen by purchase from Edward Peters, the son, made with the assent of the father, in the summer or Fall of 1852. The facts show quite clearly, that the oxen were bought by the son for the father and while acting for him, and that the father was expected to pay for them, and most probably did pay for them with his leather. This conclusion is much strengthened by the fact that the father merely disclaims property in the oxen, without the least effort to explain how they happened to belong to his son, when all the ostensible facts of the transaction, that could readily be known by others, together with the fact of his trading them off himself, show that the oxen belonged to him, the father.

The right of appellants is prior in point of time to that of appellee, and should have prevailed over it, under the law and charge of the Court, if the jury credited the uncontradicted statements of John Iglehart and Lavassa on the subject of the time of the respective purchasers. There is nothing to throw suspicion upon the evidence of either of them. Upon this point alone we think the Court should have granted the motion for a new trial.

Eeversed and remanded.