GIBBONS, J.
The first question presented by the present record is, whether actual delivery of personal chattels is essential, in order to complete the contract of sale, and pass the title to property, as respects the creditors of the vendor. As between the vendor and vendee, the simple contract of sale, when complete in all its parts, undoubtedly passes the title; but a9 respects the creditors of the vendor, when the possession of the chattel remains with the latter after the contract of sale, does the title pass, so as to effect an actual change of prop[220]*220ertyl According to the doctrine of this court, as settled at an early day, where the possession of a chattel remains with the vendor, it is, as to creditors, a badge of fraud simply, and not fraud per se. Such possession, so remaining with the vendor, unexplained, is prima facie evidence of fraud, but still may be explained; and if consistent with good faith and the absolute disposition of property, and the transaction is bona fide throughout, then the title passes by the eoutract of sale, notwithstanding the possession remains with the vendor. —Hobbs v. Bibb, 2 Stewart 54; Ayres v. Moore, ib. 336. The doctrine of these early decisions has never been departed from by this court, but has several times been subsequently recognized and followed.— Blocker v. Burgess, 2 Ala. 354; Ravisies v. Alston, 5 Ala. 297; Planters’ & Merchants’ Bank v. Borland, 5 Ala. 531; Mauldin & Terrell v. Mitchell, 14 Ala. 814. It follows, that there was no error in refusing to give the first charge prayed by the plaintiff, nor in giving to the jury the charge adopted by the court.
2. Neither did the court err in refusing to give the second charge asked. We know of no law, in our State, that requires such a bill of sale to be recorded ; and if the defendant had taken the trouble to have had it acknowledged and recorded, his position would, in no respect, have been changed. — Hobbs v. Bibb, 2 Stewart, supra. This charge was therefore properly refused.
The third and fourth exceptions, as to the effect of the proof tending to explain the possession of Thomas Hall after the date of the bill of sale to William T. Hall, may be considered together. In each of these requests to charge, the plaintiff desired the court to say to the jury, that the possession of Thomas Hall was not sufficiently explained by the facts offered in evidence. This the court refused to do; and in the latter, the court left it to the jury to say whether the explanation of such possession Was sufficient or not. We think there was no error in the refusal to charge as prayed in these requests ; nor is there any error of which the plaintiff can complain, in the court’s leaving it to the jury to say whether the possession was sufficiently explained or not. In the case of Planters’ & Merchants’ Bank v. Borland, supra, it is said, that fraud is a question of law, after the facts are found. Without calling in question the cor[221]*221rectness of this position, but taking it as the iu.. ^ ' ,:ee the present ease, still there is no error of which the plain im can complain in the present case, in having the question of fraud left to the jury. The reason is, that, according to the rule as laid down in the case of the Planters’ & Merchants’ Bank v. Borland, the court should have pronounced upon the question of fraud in the fourth request to charge, and should have stated to the jury, that, on the facts proved, the possession was sufficiently explained. Wo have no hesitation in coming to the conclusion, that, on the facts set forth in the bill of exceptions, given in evidence in explanation of the possession of Thomas Hall, such possession was sufficiently explained, if the transaction was in all other respects bona fide. Leaving this question to the jury, therefore, by the court, was giving to the plaintiffs thereby another chance of a favorable result to them upon the point; whereas, if the court had done its duty, it would have taken the question of explanation entirely from the' jury, and charged that the explanation given, if true, was sufficient, in law, to repel the presumption of fraud. We say nothing of the correctness of the rule as laid down in the case of Planters’ & Merchants’ Bank v. Borland, and Mauldin & Terrell v. Mitchell, supra, but simply follow it; and by that íule the plaintiffs in error have no cause to complain of any matter in the third and fourth requests to charge. If we were inclined to remodel the rule laid down, it would be made more stringent against the plaintiffs.
4. The fifth request to charge was, that the record from Dallas showed sufficient authority to the sheriff to sell the slaves levied on under the attachment. This the court refused, and charged the jury, that the said record did not show a sufficient authority to the sheriff to sell; and further, that, if that was the only authority under which the slave in question was sold by the sheriff, then the purchasers at said sale acquired no title. The court further asserted the proposition, that, in addition to the order of sale made by the court, as shown in the transcript of the record from Dallas, there must be a further order or process, from the clerk of the court to the sheriff, to proceed to execute the said order; and in the absence of such further order or process from the clerk of the Circuit Court of Dallas to the sheriff, the proceedings of the sheriff, in making the sale, were [222]*222illegal, his acts void, and the purchasers at said sale acquired no title. In this, we think, the court below mistook the law. The order, when examined, willbefound to be, “that, unless the defendant shall replevy such property before the first Monday of July next, the sheriff of Dallas County do proceed to sell the same at the court house door, on that day, on the same notice, and in the same manner, as the law requires other sheriffs’ sales to be conducted, and that he pay the proceeds into court, subject to the further order of this court.” On examining this order, the statute under which it was made, and the affidavit, necessarily its predicate of the liability of the property to deterioration and waste, we are of opinion that, under the established practice in this State, it was well warranted. The property, at that time, it must be recollected, was in the custody of the sheriff; and the order is, that the sheriff sell it on a certain day, unless it be before that day replevied by the defendant. It is difficult to conceive how the sheriff could have a more direct and positive authority for making the sale, than the order of the court fernishesL.him. If the clerk had attempted to issue an order of sale to ih®^ sheriff, based upon the order of the court, he could only have copied the order, as he would have had no power to add to it, or diminish from it, a single word or line, so far as it was effectual in giving to the sheriff an authority to sell. The sheriff, like the clerk, is an officer of the court, and directly under its control. The court may well, in certain cases, for aught which we can see, give orders directly to the sheriff, for his action in matters pertaining to his duties; and all that the clerk would have to do, in such cases, would be to record the orders and directions of the court; but the clerk could neither direct, control, nor stay the action of the sheriff, where the latter was acting upon orders received directly from the court.
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GIBBONS, J.
The first question presented by the present record is, whether actual delivery of personal chattels is essential, in order to complete the contract of sale, and pass the title to property, as respects the creditors of the vendor. As between the vendor and vendee, the simple contract of sale, when complete in all its parts, undoubtedly passes the title; but a9 respects the creditors of the vendor, when the possession of the chattel remains with the latter after the contract of sale, does the title pass, so as to effect an actual change of prop[220]*220ertyl According to the doctrine of this court, as settled at an early day, where the possession of a chattel remains with the vendor, it is, as to creditors, a badge of fraud simply, and not fraud per se. Such possession, so remaining with the vendor, unexplained, is prima facie evidence of fraud, but still may be explained; and if consistent with good faith and the absolute disposition of property, and the transaction is bona fide throughout, then the title passes by the eoutract of sale, notwithstanding the possession remains with the vendor. —Hobbs v. Bibb, 2 Stewart 54; Ayres v. Moore, ib. 336. The doctrine of these early decisions has never been departed from by this court, but has several times been subsequently recognized and followed.— Blocker v. Burgess, 2 Ala. 354; Ravisies v. Alston, 5 Ala. 297; Planters’ & Merchants’ Bank v. Borland, 5 Ala. 531; Mauldin & Terrell v. Mitchell, 14 Ala. 814. It follows, that there was no error in refusing to give the first charge prayed by the plaintiff, nor in giving to the jury the charge adopted by the court.
2. Neither did the court err in refusing to give the second charge asked. We know of no law, in our State, that requires such a bill of sale to be recorded ; and if the defendant had taken the trouble to have had it acknowledged and recorded, his position would, in no respect, have been changed. — Hobbs v. Bibb, 2 Stewart, supra. This charge was therefore properly refused.
The third and fourth exceptions, as to the effect of the proof tending to explain the possession of Thomas Hall after the date of the bill of sale to William T. Hall, may be considered together. In each of these requests to charge, the plaintiff desired the court to say to the jury, that the possession of Thomas Hall was not sufficiently explained by the facts offered in evidence. This the court refused to do; and in the latter, the court left it to the jury to say whether the explanation of such possession Was sufficient or not. We think there was no error in the refusal to charge as prayed in these requests ; nor is there any error of which the plaintiff can complain, in the court’s leaving it to the jury to say whether the possession was sufficiently explained or not. In the case of Planters’ & Merchants’ Bank v. Borland, supra, it is said, that fraud is a question of law, after the facts are found. Without calling in question the cor[221]*221rectness of this position, but taking it as the iu.. ^ ' ,:ee the present ease, still there is no error of which the plain im can complain in the present case, in having the question of fraud left to the jury. The reason is, that, according to the rule as laid down in the case of the Planters’ & Merchants’ Bank v. Borland, the court should have pronounced upon the question of fraud in the fourth request to charge, and should have stated to the jury, that, on the facts proved, the possession was sufficiently explained. Wo have no hesitation in coming to the conclusion, that, on the facts set forth in the bill of exceptions, given in evidence in explanation of the possession of Thomas Hall, such possession was sufficiently explained, if the transaction was in all other respects bona fide. Leaving this question to the jury, therefore, by the court, was giving to the plaintiffs thereby another chance of a favorable result to them upon the point; whereas, if the court had done its duty, it would have taken the question of explanation entirely from the' jury, and charged that the explanation given, if true, was sufficient, in law, to repel the presumption of fraud. We say nothing of the correctness of the rule as laid down in the case of Planters’ & Merchants’ Bank v. Borland, and Mauldin & Terrell v. Mitchell, supra, but simply follow it; and by that íule the plaintiffs in error have no cause to complain of any matter in the third and fourth requests to charge. If we were inclined to remodel the rule laid down, it would be made more stringent against the plaintiffs.
4. The fifth request to charge was, that the record from Dallas showed sufficient authority to the sheriff to sell the slaves levied on under the attachment. This the court refused, and charged the jury, that the said record did not show a sufficient authority to the sheriff to sell; and further, that, if that was the only authority under which the slave in question was sold by the sheriff, then the purchasers at said sale acquired no title. The court further asserted the proposition, that, in addition to the order of sale made by the court, as shown in the transcript of the record from Dallas, there must be a further order or process, from the clerk of the court to the sheriff, to proceed to execute the said order; and in the absence of such further order or process from the clerk of the Circuit Court of Dallas to the sheriff, the proceedings of the sheriff, in making the sale, were [222]*222illegal, his acts void, and the purchasers at said sale acquired no title. In this, we think, the court below mistook the law. The order, when examined, willbefound to be, “that, unless the defendant shall replevy such property before the first Monday of July next, the sheriff of Dallas County do proceed to sell the same at the court house door, on that day, on the same notice, and in the same manner, as the law requires other sheriffs’ sales to be conducted, and that he pay the proceeds into court, subject to the further order of this court.” On examining this order, the statute under which it was made, and the affidavit, necessarily its predicate of the liability of the property to deterioration and waste, we are of opinion that, under the established practice in this State, it was well warranted. The property, at that time, it must be recollected, was in the custody of the sheriff; and the order is, that the sheriff sell it on a certain day, unless it be before that day replevied by the defendant. It is difficult to conceive how the sheriff could have a more direct and positive authority for making the sale, than the order of the court fernishesL.him. If the clerk had attempted to issue an order of sale to ih®^ sheriff, based upon the order of the court, he could only have copied the order, as he would have had no power to add to it, or diminish from it, a single word or line, so far as it was effectual in giving to the sheriff an authority to sell. The sheriff, like the clerk, is an officer of the court, and directly under its control. The court may well, in certain cases, for aught which we can see, give orders directly to the sheriff, for his action in matters pertaining to his duties; and all that the clerk would have to do, in such cases, would be to record the orders and directions of the court; but the clerk could neither direct, control, nor stay the action of the sheriff, where the latter was acting upon orders received directly from the court. The order to sell the property levied on as perishable, we consider as one of those orders where the court acts directly upon the sheriff, and the order is to him to sell, and not to the clerk to issue an order of sale. In the ordinary processes of a final executive character, issuing from courts, it is true, the clerk’s signature is absolutely essential to give them validity, ur to give to the sheriff authority for his acts in the premises ; but that rule would not apply to a case like the one under consideration. The authority of the sheriff is found in [223]*223the fiat of the court, ordering him to sell; and if that could not give to the sheriff the power to make the sale, no process which the clerk could have issued could have given it to him.
Our conclusion is, that the order of the court was ample authority for the sheriff of Dallas to make the sale; and that the purchaser at such sale would take under it such title as Thomas H. Hall, the defendant in the attachment, had, at the time of the levy of the attachment.
5. It is difficult to determine what portions of the testimony of the witnesses Lovett and Lapsley were excluded by the court. The particular portion is not set out in the bill of exceptions, although the two entire depositions are made exhibits. That portion of the deposition of Lovett, which we suppose falls within the description of what was said to be excluded, may be found in the statement of the case ; but wo perceive no portion of the deposition of Lapsley which fills that description. It is insisted, that these depositions should have been read entire, without objection, under the agreement of counsel, of record. But on the examination of the agreement, we do not give to it that interpretation. Tho language of the agreement is : “ Audit is further agreed, that the testimony of John G. Lovett, taken by C. C. Pegues, shall be considered as regularly taken.” This agreement is not broad enough to admit illegal evidence, if the testimony objected to was of that character.
The testimony ruled out is said to be that relating to the contents of che order of sale. In excluding this testimony, we see no error, inasmuch as, if the order of sale referred to was the one found in the record, it was of itself the best evidence, and should have been left to speak for itself; if it Ayas an order issued by the clerk of the Circuit Court of Dallas, then it was rightly excluded, because the way Ayas not sufficiently paved for the introduction of secondary evidence. The order itself, if such a one ever existed, was the best evidence. If that could not be produced, then its existence should have been distinctly proven, its absence accounted for, or its loss established, after the requisite searches had been made for it in the proper officer. All this proof was necessary, as preliminary to the competency of the proof of the contents of any order of sale not produced. The record does not show that such proof Ayas made, and the secondary evidence was properly excluded. For the error that [224]*224intervened, in tbe ruling of the court upon the sufficiency of the order of sale to confer an authority upon the sheriff to sell the property, the judgment of the court below is reversed, the non-suit submitted to by the plaintiff ordered to be set aside, and the cause remanded.
CHILTON, C. J.
Where a practice has long obtained, and a vast number of titles may fairly be presumed to be dependent upon it, it should require a very clear case to induce the court to depart from it; and an overruling necessity for the establishment of a different practice should exist, before the court would undermine the foundations of title and set them afloat.
It is always better to let the Legislature, in such cases, apply the corrective : for, in this way alone, can the supposed evil be remedied, without destroying titles which have been acquired in good faith and under the sanction of judicial sales. The fact that the practice has long obtained, in several of the circuits in this State, of selling slaves as perishable property, under certain circumstances, by virtue of the attachment laws, that it has been acquiesced in by the Legislature, and that no attempt has been made to alter it, is persuasive to show, that the practice, in the legislative contemplation, is not opposed to the spirit of the eighth section of the attachment law.
By the law, as it stood when this order of sale was made, the sheriff kept the slaves in jail. Now, it might often happen, that to keep slaves in this manner, pending a long litigation, would, in all human probability, result in their destruction; thus, it may be, destroying the only means for the satisfaction of the demand sued for, and inflicting an irreparable injury on the defendant. Besides, if the slaves were sick, with a disease which would be so aggravated by being thus kept as to result in their death, it would be most inhumane to them, as well as greatly prejudicial to the parties, to hold that they must be kept until the final decision.
All we hold is, that the order of the court, under the circumstances of this case, is not void, but effectual to pass the title to the purchaser. I do not think such orders should ever be granted, except in cases where the keeping of the property would likely result in its destruction, or great deterioration; [225]*225and in determining these questions, much must be left to the discretion of the court, to be exorcised in reference to all the surrounding facts and circumstances.