B. T. GRAY et al., Respondents, v. J. D. SULLIVAN et al., Appellants
Gray v. Sullivan
B. T. GRAY et al., Respondents, v. J. D. SULLIVAN et al., Appellants.
[No. 746.]
B. T. GRAY et al., Respondents, v. J. D. SULLIVAN et al., Appellants.
Sale op Personal Peopebty — Actual and Continued Change op Possesses — Statute op Eeauds. — where personal property is purchased for a fair consideration: Meld, that in order to take the case out of the operation of the Statute of Erauds, the vendee must take actual possession of the property, the possession must be oxien, unequivocal, substantial and continuous, and must not be taken to be surrendered back.
Idem. — When it appears from all the facts and circumstances, considered in the order and manner in -which they occurred, after the purchase, that the vendee exercised such acts of ownership as is usual for persons who own the same species of ¡xroperty, and that the property was at all times after the purchase Under his direction and control, and was in his charge at the time of the levy, and had not been in the possession of either of the vendors: Held, that this brings the case within the rule above announced.
Idem: — Employment op Seevant op Vendos. — As it is well settled that the employment of the vendor in a subordinate capacity is only colorable and not conclusive evidence of fraud: Seld, that no stronger rule ought to be adopted against the employment of the mere servant of the vendor.
Appeal from tbe District Court of tbe Sixth Judicial District, Eureka County.
Tbis action was brought by respondents to recover from appellants certain personal property mentioned in the opinion.
Tbe evidence shows that respondents paid fifteen hundred dollars for the property. The •answer of appellants denies that the property is of any greater value than fifteen hundred dollars, and the jury found the value of the property to be fifteen hundred dollars. B. T. Gray, one of the plaintiffs, testified that he had charge of the team at the time the officer made the levy. The court, after quoting the provisions of the statute in reference to the sales of personal property in this State, instructed the jury as follows: You are instructed that under this statute want of an immediate delivery and an actual and continued change of possession, in case of the sale from Davidson and Lockwood to plaintiffs, is conclusive evidence of fraud as against their creditors, and it makes no difference, as far as that question is concerned, whether such creditors had notice of an attempted sale or not, but an actual delivery and an actual and continued change of possession before the levy of the attachment is sufficient.
“If you believe from the evidence that the plaintiffs in good faith, without fraudulent intent, and for a valuable consideration, purchased the property sued for from Davidson and Lockwood, and took actual and immediate possession of the same, and were in the actual possession thereof at the time of the levy of the attachment, then you must find for the plaintiffs.
“If you believe from the evidence that * *• * there was no actual and continue)! change of possession of the property from Davidson and Loclryood to plaintiffs, you must find for tbe defendants.
“If you believe from tbe evidence tbat tbe witness William Meadows was in possession of tbe property sued for, in tbe capacity of a hired man for Davidson and Lockwood prior to tbe sale to plaintiffs, and tbat after sucb sale Meadows still kept possession of said property, and was in possession of tbe same at tbe time of tbe levy of tbe attachment, then sucb possession was conclusive evidence of fraud as against creditors, and there was no such change of possession as required by law.
“If you believe from the evidence tbat Meadows was not in tbe possession of tbe property at tbe time of said levy, but tbat B. T. Gray, one of tbe plaintiffs, bad tbe actual possession thereof at tbat time, then there was sucb a change of possession as required by law.
“In order to show possession of personal propeidy, tbe control and management of sucb property, or acts of ownership over it by the person claiming ownership of tbe same, can be taken into consideration by you; and if Meadows was acting in tbe same manner in reference to tbe property at tbe time of tbe levy, as be bad prior to tbe sale to tbe plaintiffs, then there was no change of possession under tbe law.”
At tbe request of defendants’ counsel tbe court gave tbe following instruction: “Tbe jury are instructed tbat in order to make a sale of property tona fide and good as against attaching creditors, there must be an actual and continued change in tbe possession of tbe property, sucb as would notify tbe world of tbe change in ownership and of tbe claims of tbe new owner; and if you find from tbe evidence in this case tbat there was not such a change in tbe possession of tbe property here in dispute, your verdict will be for tbe defendants.”
Tbe jury found a verdict for tbe plaintiffs.
Defendants moved for a new trial, which was refused.
Defendants appeal.
Tbe other facts material to tbe decision are stated in tbe opinion of tbe Court.
George W. Baker, for Appellants.
The only question relied on by defendants in tbis case is that of constructive fraud in tlie change of the possession from Lockwood and Davidson to plaintiffs. Plaintiffs purchased the team upon January 1, 1875, for a fair consideration, and took immediate possession and changed the stable for the team. "What constitutes constructive fraud in the sale of a chattel? The earlier cases in California were a little modified by the decisions in the case of Stephens v. Irwin (15 Cal. 503), which lays down the rule, which is sound in principle, and has ever since been adhered to and acquiesced in by that court.
The rule therein announced has been affirmed in the cases of Engles v. Marshall, 19 Cal. 329; Godehaux v. Mulford, 26 Cal. 323; Woods v. Bughj, 29 Cal. 472, and Waldie v. Doll, Id. 560, and may safely be said to be the settled law upon the subject, both in this State and California.
To the same effect, see 47 Cal. ,612; 4 Nev. 367, and 1 Nev. 218.
Now, let us apply this principle to the facts of this case, as above stated. Was plaintiff’s possession an open one? True, he took the possession of the team in the street, but the next morning William Meadows, the driver of Lockwood and Davidson, hitched it up and started out with it to the ranch on time, making regular trips.
The possession of plaintiff was not notorious. There was nothing connected with .it that was calculated to notify third persons of the different relations -of the property, or of the claims of the new owner to it.
Plaintiff’s possession was not unequivocal. I take the term unequivocal, as used by the courts in this connection, • to mean that the possession must be such as to be free from doubt as to who actually had the possession; and, if correct upon that point, then the plaintiff did not have such possession at the time of the levy.
Thomas Wren, also for Appellants.
I. It is clear upon tbe evidence that there was an actual change of possession at the time the sale was made, and that it continued for one night. Did it continue any longer?
Upon the next morning after respondents took possession of the property, Gray (one of the respondents) employed William Meadows, who was driving the team for Lockwood and Davidson at the time of the sale, to drive the team out to Lockwood and Davidson’s ranch, to get some coal-sacks. This, in the eye of the law, was equivalent to a surrender of the possession of the team back to Lockwood and Davidson. The law requires that there shall be an actual and continuous change of possession of personal property upon a sale that will “give notice to the world that a transfer of possession has taken place.” (Doak v. Brubaker, 1 Nev. 222.) This case is nearly analogous to that of Hurlburt v. Bor/ardus (10 Cal. 518).
Upon the sale of personal property, the law requires the purchaser to take actual possession of the property purchased, and to hold possession continuously. The authorities say that the possession must be open, notorious, actual and unequivocal, so as to notify strangers and third persons that there has been a change of ownership — that it must be taken not to be surrendered back, etc.
Is it not clear that Gray was not only not exercising any equivocal acts of ownership, or any act of ownership, over the team at the time it was taken, but that he had not, from the time he intrusted Meadows with it, up to the time of the levy, exercised a single act of ownership whatever to notify third persons that there had been a change of ownership, and that all his acts taken together were not at all calculated to give notice to third parties that there had been a change?
Hillhouse dc Davenport, for Respondents.
I. The only question to be determined on this appeal is, Was there any evidence to justify the verdict? If there is any evidence to justify tbe verdict, tbe appellate court will not interfere witli tbe action of tbe lower court. (Treadway v. Wilder, 9 Nev. 70.) Tbe evidence is all in tbe transcript, and tbe question now urged by appellant was fairly and properly submitted to tbe jury and decided by tbe verdict, wbicb verdict was affirmed by tbe district judge in overruling tbe motion for a new trial. No motion was made for judgment for defendants after tbe -testimony was in. If there was any evidenco to go to tbe jury, then, of course, under tbe law tbe verdict will not be disturbed. *
II. Tbe statute of frauds, wbicb appellants invoke bere, bas been a source of a great diversity of opinion with tbe bench and bar for years past. Tbe courts for a time in California were very much inclined to, and did in fact give to this statute a very rigid and strict construction, and held that immediate delivery must have been made independent of the time when creditors’ rights intervened, and that continuous change must have been forever, under all circumstances. This very strict construction was followed but a short time. Tbe courts found that instead of promoting honesty and fair-dealing, such construction frequently declared transactions wbicb were perfectly honest, fraudulent. In fact, tbe legislature never intended such rigid construction. It only adopted tbe stricter rule as laid down by tbe Supreme Court of tbe United States; and tbe courts of California, before our State was formed, modified those liarsb and unjust rules formerly adopted in that State. Then, wo submit, that in this case there was ample testimony to go to tbe jury. We are unable to find in any case any decision that bolds that the employment of tbe employee of tbe vendor by tbe vendee is any more than a circumstance to go to tbe jury upon tbe question of actual fraud, unless, perhaps, where such employee continues in tbe same position, and bad exclusive control of tbe property»sold.
Meadows, it is true, drove tbe team out to tbe ranch, but Gray was wútb tbe team when tbe officer attached it; bad control of it, helped to turn it, and was helping to load it. Plaintiff bad contracted with E. Davidson (not one of tbe firm of Lockwood and Davidson) to haul the coal. Lockwood and Davidson bad sold tbe ranch to E. Davidson, and put him in possession of it; and at that ranch the officer levied upon the team while Gray, one of the plaintiffs, was present, in charge and assisting to load.
We submit, then, that upon a careful consideration of all the evidence, this Court will find that the evidence shows, not only enough to go to a jury, but enough to satisfy even the most strict and rigid construction ever invoked by a court on this question.
We refer to the following cases: Glide v. Steele, 6 Nev. 335, and authorities there cited; 26 Cal. 316-317, and cases there referred to.
By the Court,
Hawley, C. J.:
It is claimed by appellants that there was not sufficient evidence, iipon the trial of this case, to show such an actual and continued change of possession of personal property as the law requires in order to take the case out of the operation of the statute of frauds.
The property; consisting of a team of ten animals and three wagons, with harness, etc., was purchased by respondents of Lockw.ood and Davidson, on the first day of January, A. D. 1875, for- a fair consideration. At the time of the purchase the team was hitched up and was standing in front of the Idaho Stable. Lockwood and Davidson, after executing a bill of sale of the team, delivered, the possession of it to B. T. Gray, one of the respondents, who drove it over to Shipley's corral, and there unhitched and unharnessed it, assisted by a young man named McCall. The next morning Gray employed one William Meadows, who had been the teamster for Lockwood and Davidson, to drive the team to ¡the Lockwood and Davidson ranch for some coal-sacks that he had also purchased with the team. Gray states, as a reason for the employment of Meadows, that he had ascertained the night before that McCall did not know the way to the ranch, and not knowing the way Mmself be employed Meadows to go along, drive tbe team, and show bim tbe road. About one bour after Meadows left Eureka with tbe team, Gray started on horseback, and when be had caught up with tbe team rode with tbe teamster on tbe wagon for some distance, then left bim and rode on horseback to tbe ranch. Tbe next morning be assisted the driver in harnessing and bitching up tbe team, and during tbe day Meadows drove tbe team, as directed by Gray, and while Gray was engaged in sewing sacks and other parties were filling them and loading tbe wagons, tbe officer caine and attached tbe team as the property of Lockwood and Davidson, in a suit brought against them by Beilly and Harrison, attaching creditors.
From this brief statement of tbe evidence offered by respondents, it will be seen that tbe facts of this case are not, as. is claimed by appellants, analogous to Hurlburt v. Bogardus, for there the property, as stated in the opinion of the court, "remained in charge of the same person, at the same place, and was used in the same manner after as before such purchase." (10 Cal. 518.) Nor similar to the case of Doak v. Brubaker, where "the cattle were left where they were before tbe execution of the mortgage,' and under tbe control and charge of the same herdsman." (1 Nev. 222.) Here actual possession was taken by the vendee. It was open and unequivocal, substantial and continuous, and was not taken to be surrendered back, if tbe testimony of respondents was true. The mere fact that Gray rode on the wagon is, as was argued by counsel, of but little significance. It was not, of itself, such an act as was calculated to give notice to third persons; so the mere fact of assisting to turn the wagon around tbe next day, or assisting in tbe loading of the wagon, were, of themselves, of but little importance. But all tbe facts and circumstances from the timé of the purchase must be considered in the order and manner in which they occurred, and when this is done it does appear that Gray exercised such acts of ownership as is usual for persons who own that species of property. Independent of tbe reasons assigned by Gray for tbe em ployment of Meadows, we tbink bis own acts tended to give notice to tbe world that be was tbe owner of tbe property. It was at all times, after tbe purchase, under bis direction and control, and was never in tbe possession of either of tbe vendors; in fact, it was shown that they, being in failing circumstances, bad fled tbe country prior to tbe levy of tbe attachment. Tbe facts of this case bring it within tbe rule announced in Stevens v. Irwin, 15 Cal. 504, which was followed by this Court in Carpenter v. Clark, 2 Nev. 244. See also Ford v. Chambers, 28 Cal. 13; Clute v. Steele, 6 Nev. 335. Tbe instructions and charge given by tbe court to tbe jury, against which appellants make no objection, were as favorable to appellants as tbe law would warrant. It is well settled that tbe employment of tbe vendor in a subordinate capacity is only colorable and not conclusive evidence of fraud. (Godchaux v. Mulford, 26 Cal. 324; Billingsly v. White, 59 Penn. State, 466.) Certainly no stronger rule ought to be adopted against tbe employment of tbe mere servant of tbe vendor. Tbe court, in Godchaux v. Mulford, discussing tbe question of the employment of the vendor, said: "It was competent for tbe defendants to prove tbe fact as tending to show that there bad been no actual and continued change of possession; but when proved it did not become conclusive of that question, but only an element of proof to be weighed by tbe jury."
We tbink there was sufficient testimony in this case to preclude tbe court from declaring tbe sale fraudulent in law, and tbe jury to whom tbe question was fairly submitted, and whose province it was to decide, found that it was not fraudulent in fact. Upon a review of tbe whole case we are of tbe opinion that tbe rulings of tbe court were correct.
Tbe judgment and order appealed from are affirmed.