Dennis v. Rainey.

2 Dillon Mun. Corp., 639. But yet there are cases which broadly hold that a notorious and uninterrupted possession by an individual or a private corporation, under a claim of right, land dedicated to a city for public squares or streets for the period of the statute of limitations, will bar the city of the claim to its use. 8 Ohio, 298; 5 Ohio, 594.

non

"as a

It seems from the charter of the town of Pulaski that the mayor and aldermen may sell and convey streets or parts of streets, alleys or public grounds, by consent of adjacent proprietors and upon notice to them. Amended charter, 1850, secs. 11, 11, 18. The right to treat the lot in controversy as a street, might have been parted with by deed, or perhaps by long user. At all events, since its conveyance lot or parcel of ground" to the defendant Rainey, the corporation and its privies in estate might perhaps be estopped from treating it as a street, and hence the production of the deed in this case was not only legitimate on the part of the plaintiff, but a matter of prime importance upon which to base an estoppel if he could. The title, however, not being in issue in this action, it was certainly not admissible as a muniment of title. Whether it be such estoppel or not, it is not It is cernow proper to determine. tain, however, that Rainey himself, the vendee, could not, with the title deed in his hand, have thus summarily dispossessed the plaintiff, and upon what principle the corporation could do so with no title at all

we cannot see.

There are many other alleged errors which we will

Hawkins v. Davis.

not take time to discuss. They will, perhaps, not occur upon another investigation. We hold that the court erred in withdrawing the deed from the consideration of the jury.

Reverse the judgment and award a new trial.

J. HAWKINS v. W. A. DAVIS and W. J. HARDeman.

FRAUD. Sale of personal property. Vendor cannot recover from third person when he has been defrauded by his vendee. While property remains in possession of a fraudulent vendee, the sale may be avoided by the vendor, but if the fraudulent vendee sell and transfer the same to an innocent third person, for valuable consideration, such sale will vest the purchaser under it with the title which the claim of the original vendor cannot defeat.

Cases cited: Arendale v. Morgan & Co., 5 Sneed, 703; Gage et al. v. Epperson, 2 Head, 669; Memphis City R.R. Co. v. Mayor and Aldermen, 4 Col., 413.

Hawkins v. Davis.

The plaintiff sued defendants in the Circuit Court of Giles county to recover the contract price, or the value of 6,623 pounds of cotton. He alleges that he sold the cotton to one Pilant, who represented himself to be and was in fact their agent in the purchase.

Defendants deny the agency of Pilant, or any knowledge of any purchase by him of plaintiff. There is some evidence tending to show that the defendants bought some cotton of Pilant.

The plaintiff insists that the charge of the court upon the question thus raised by the evidence was erroneous. The court charged the jury that if the plaintiff sold the cotton to Pilant, believing him to be the agent of defendants, and intended at the time of the sale to part with his title to said Pilant as such agent, and delivered the possession to him, and Pilant was not in fact the agent of defendants, and defendants were ignorant of these representations, and without intention to defraud, purchased the cotton from Pilant and paid him for it, they would get a good title, and plaintiff could not recover.

We are of opinion that this charge is sustained by the authorities. The cases cited to sustain the adverse view are, in part, at least, cases in which the sales were made by persons having the mere possession, without apparent title, which is not sufficient to defeat the right of the real owner. But when the original vendor parts with his possession and title to the property, although he may have been induced to do so by the fraudulent representations of his vendee,

Bartee v. Thompson.

it is a contract of sale, however fraudulent the devices used to procure it. Benj. on Sales, 367-8.

While the property remains in the possession of the fraudulent vendee, the sale may be avoided at the election of the vendor, but if the fraudulent vendee sell and transfer the property to an innocent third person for a valuable consideration, such sale will vest the purchaser with the title which the claim of the original vendor cannot defeat. 5 Sneed, 703; 2 Head, 669; 4 Col., 413.

There is no error in the record, and the judgment will be affirmed.

M. J. BARTEE et al. v. ABSALOM THOMPSON, Ex'r.

1. WILLS.

Capacity of testator. Evidence. Proof. In the examination of the attesting witnesses in the first instance as to the formal execution of the will, there being no circumstances of suspicion surrounding it, it is not necessary to interrogate them as to the sanity of tes

tator.

Cases cited: Puryear v. Reese, 6 Col., 24, and cases there cited.

2. SAME. Same. Same. While in an issue of devisavit vel non, the onus probandi is on the party seeking to establish the will, yet the burden of proving unsoundness or imbecility of mind in the testator is upon the party impeaching the validity of the will for this cause. Cases cited: Barnes v. Smith, 3 Hum., 283; Puryear v. Reese, 6 Col., 24; Cox v. Cox, 4 Sneed, 86.

3. SAME. Same. Same. In ordinary cases, the fact of execution of the will being proved, the knowledge by the testator of its contents will be

Bartee v. Thompson.

presumed. But where the testator is blind or illiterate, no such presumption arises. In such cases more is required than proof of formal execution. In such cases there must be proof not only of the formal execution of the will, but likewise of the testator's knowledge of its contents.

Cases cited: Cox v. Cox, 4 Sneed, 86; Watterson v. Henry Watterson, 1 Head, 1.

4. SAME. Same. Same. The fact that a will is executed by a testator by making his mark is prima facie evidence of his inability to write, or to read writing, and in such a case there ought to be evidence by the attesting witnesses in explanation of the manner of signing, or evidence of the knowledge of the contents of the will, to make the formal execution complete, or to entitle the plaintiffs to a verdict, if no counter proof is offered.

FROM MAURY.

Appeal from the Circuit Court.

MARTIN, Judge.

J. M. GAUT for plaintiff.

No counsel marked for defendant.

DEADERICK, J., delivered the opinion of the Court.

This is an appeal in error from the judgment of the Circuit Court of Maury county, upon the verdict of a jury establishing the will and codicils thereto of Mrs. Michael Thompson, deceased. A great deal of evidence is found in the record pro and con as to the sanity of the testatrix at the time of the execution of the several papers in controversy in this case. Several exceptions are taken to the charge of the court by the contestants.

The court charged the jury that "the will must