Gamble, Judge,¶1delivered the opinion of the court.
¶21. There is no warrant in the New Code of Practice for the idea, that a party cannot use in evidence a paper, which has not been filed in the court. The 13th sec. of the Tth Article requires either party relying upon a record, deed, or other writing, to file with his plea an authenticated copy of such record, and the original deed or writing, if in his power. This is only applicable to cases in which the party recites his title in his pleading, as existing by written conveyances, or to a case in which the record is recited in the pleading, as confirming or barring a right. Take the case of a suit upon a note, in which the defendant answers that before the institution of the suit, he *162paid the debt; the defence in such a case is, the fact of payment, and this may be shown by a receipt, or by oral evidence. In such case, a receipt, which proves the fact of payment, may undoubtedly be used in evidence, whether it was filed or not. The party does not “rely on the writing,” but on the fact of payment.
¶3The papers given in evidence, in this case, could not be properly objected to, because they had not been filed, orbe-cause the plaintiff had not set them out in his petition..
¶42. The possession of the property, in this case, being in the plaintiff, under the contract with White, the interest of White was not the subject of sale under execution. King v. Bailey, 8 Mo. Rep. 332. Whether we regard the possession of the plaintiff, as held under a pledge to him, or a mortgage for the money he had advanced on a conditional sale, the creditor of White could not, under his execution, take that possession from him.
¶5When, in the attachment suit against White, in which the plaintiff was summoned as garnishee, the plaintiff declared his election to keep the horses and pay the remainder of the consideration, and was adjudged to pay, and did pay such consideration, his title to the property was complete.
¶6Let the judgment be affirmed.
