Smith v. Cumins & Co. think the statute contemplates only that class of cases where the plaintiff upon the one side claims that he has title, legal or equitable, and the defendant disputes the plaintiff's title, and claims title in himself or another. The evident object of the statute is to preserve record evidence of titles, for the better security of rightful owners, in cases where the title is involved and expressly settled or adjudicated. What was adjudicated and settled in this action? Nothing more than that the plaintiffs had no right to subject the land to the payment of their judgment. The defendant's title was left untouched, and she now holds the land free from her husband's debt to the plaintiff. The dismissal of the petition was not an adjudication that Cumins & Co. had no title to the land, and that the defendant had such title. It was merely a determination that the defendant's land could not be subjected to the payment of her husband's debts. And we may say that the adjudication. would not have been other, nor different, if the affirmative decree quieting her title had been pleaded as a cross-petition, and the entry upon the calendar had warranted an affirmative decree in her favor. The dismissal of the plaintiff's petition on a trial upon the merits effectually disposed of the claim made by the plaintiffs. 3. : III. If the case had been such as to require a complete record, the court properly refused to allow costs for recording the depositions, and other papers. Here again we must look to the object of the statute, which is to preserve records of titles. All that should be recorded, in a proper case for recording, is the original notice and return, the pleadings and the judgment or decree. This is a complete record of the whole cause, and shows what was adjudicated. It should not include the evidence. Section 196 of the Code provides that "The records of each court consist of the orig inal papers constituting the causes adjudicated or pending in that court, and the books prescribed in the next section." The next section provides for a record book containing the entry of the proceedings of the court and judgment docket, a fee book, an appearance docket and other books. Now it cannot be claimed that, to make a complete record under the statute, VOL. LII-10. Case & Co. v. Burrows and Whiting. the entries in the appearance docket, the fee book, etc., should be recorded. The original papers constituting the causes include the original notice and return, and the pleadings, including motions and demurrers, and not the evidence. The cause will be affirmed on plaintiff's appeal, and upon defendant's appeal it will be REVERSED. CASE & Co. v. BURROWS AND WHITING. 1. Instructions: ASSUMPTION OF FACT IN ISSUE. Where the fact of an alleged sale was distinctly put in issue by the pleadings, held that in the absence of clear and undisputed evidence of such sale it was error for the court to assume it as a fact, and submit to the jury only the question of its bona fides. Appeal from Buena Vista District Court. FRIDAY, OCTOBER 24. ACTION in attachment upon a promissory note executed by the defendants, T. II. Burrows, Walter Watts and Warren Prentice. The property attached is twenty-four head of cattle, in the possession of one Maurice Burrows, who held them under a contract whereby after feeding the cattle for a certain time he was to become the owner of one-half. The property was attached as the property of Walter Watts. The intervenor, Robert Whiting, claims to own the cattle (subject to Maurice Burrows' rights and interest in the same) by virtue of a pur chase of the cattle from Watts. There was a trial by jury and verdict and judgment were rendered for the intervenor. The plaintiffs appeal. Robinson & Milchrist, for appellants. II. Aplington, for appellee. ADAMS, J.-The court, in instructing the jury, in the third instruction said: "There will be one question for you to deter Case & Co. v. Burrows and Whiting. mine in this case, and that is, was the sale from Watts to Whiting a bona fide sale for a valuable consideration?" To the giving of this instruction the plaintiffs excepted. The instruction, as will be observed, assumes that there was a sale in form, and submits to the jury the mere question as to whether it was of such a character that it can be upheld as against attaching creditors of the vendor. Now the plaintiffs insist that the evidence fails to show that there was a sale even in form. And upon looking into the evidence we have to say that it appears to us to be extremely doubtful. The cattle were originally owned by one Shaw. The defendant T. H. Burrows took the cattle under a written contract to feed them for three years, and was to have one-half at the end of three years for feeding. T. H. Burrows assigned his interest in the contract to Maurice Burrows, who took possession of the cattle and was feeding them under the contract. Shaw assigned and delivered the contract to Watts and Watts to Whiting. In neither case was there any writing purporting to convey the cattle. Whether the mere assignment of the contract could have the effect to pass the title of the cattle we need not determine. The evidence tends to show that Whiting loaned money to Watts, and took the assignment of the contract as a supposed security. It is true, Whiting says in his testimony, "I am now the absolute owner," but when or how he became such does not appear. If he became the owner after the attachment such fact would not aid him. The fact of a sale was directly put in issue by the pleadings; to justify the court in assuming that there was a sale in form, the evidence of such fact should be clear and undisputed. In our opinion the instruction cannot be sustained. REVERSED. Flanagan v. MeWilliams. FLANAGAN V. McWILLIAMS ET AL. 1. Verdict: CORRECTION OF: PRESUMPTON. Where in an action of replevin the defendant claimed the property under a note and mortgage which the plaintiff alleged were wholly without consideration, and the jury found for defendant, but fixed the value of his interest at much less than the amount of the note, held, that it would be presumed they found a partial failure of consideration, and the court was not authorized to correct the verdict and render judgment for the face of the note. Appeal from Sac Circuit Court. FRIDAY, OCTOBER 24. REPLEVIN. There was a verdict and judgment for defendants. Plaintiff appeals. The facts of the case appear in the opinion. Robinson & Milchrist, for appellant. Lot Thomas and S. S. Powers, for appellee. BECK, CH. J.—I. The petition alleges that plaintiff is the absolute and unqualified owner of the property in controversy, consisting of horses, a wagon, harness, etc., and that defendants wrongfully detain the possession thereof. The alleged ground of detention of the property is shown to be that it is covered by a chattel mortgage executed by plaintiff to defendant McWilliams, to secure a note for $208. But it is averred that the note was given wholly without consideration, and plaintiff is, therefore, not indebted thereon. The answer denies the allegations of the petition and alleges that the note was given for a valid consideration. The answer also claims to recover damages for expenses in taking the property and commencing proceedings for foreclosure and for the value of the use of the property after the commencement of this action. II. A demurrer to that part of the answer claiming damages was overruled. This action of the court is the first ground of objection urged upon our attention. We think if the ruling were erroneous, which we do not determine, it was Flanagan v. McWilliams. without prejudice, for the reason that under the instruction. these items of damages could not have been considered by the jury in making up their verdict. They were directed that defendants' damage was measured by the amount of the value of their interest in the property, and no reference is made to the special damages claimed in the part of the answer assailed by the demurrer. III. The jury returned this verdict: "We, the jury, do find that at the time of the commencement of this action the defendants were entitled to the possession of the property. The value of defendants' interest in the property we fix at the sum of one hundred dollars." The defendants moved the court to correct the verdict of the jury so as to show the true value of the defendants' interest in the property which they claim in the motion to be the amount of the note and interest thereon. It is shown in the motion. that such interest appears by the pleadings, as claimed by defendants, to be the amount of the note and interest. The court sustained the motion and rendered judgment accordingly. This action was erroneous, we think. The pleadings do not show that any sum is justly due on the note; on the contrary, plaintiffs aver that nothing is due thereon for the reason that the instrument was given without consideration. The issues of the case required the jury to find upon the evidence whether the note was wholly void for want of consideration. It cannot, therefore, be justly claimed that the pleadings admitted any sum to be due upon the note. But it is said that as the jury found for the defendants in the sum of $100, they must have found that the note was based upon a full consideration, as the issues involved the total, and not partial failure of the consideration. In this view the verdict evidently is not correct, for it should have been for the whole amount due on the note. We cannot presume that the jury found there was not a total failure of consideration, for in that case their verdict would have been in the amount due on the note. We will rather presume that they found a partial failure of consideration. Whether under the pleadings they were authorized to do this, we need not determine. That they so found we must conclude, |