F. P. HOFFMAN, Respondent, v. J. J. OWENS, Sheriff of Nye County, and A. J. POMMER COMPANY, Appellants
Hoffman v. Owens
Sweeney, J.: I concur.
F. P. HOFFMAN, Respondent, v. J. J. OWENS, Sheriff of Nye County, and A. J. POMMER COMPANY, Appellants.
[No. 1817]
F. P. HOFFMAN, Respondent, v. J. J. OWENS, Sheriff of Nye County, and A. J. POMMER COMPANY, Appellants.
1.Appeal and Error—Undertaking on Appeal—Waiver.
Under the civil practice act, sec. 341 (Comp. Laws, 3436), providing that to render an appeal effectual an undertaking shall be executed, and upon the authority of Marx v. Lewis, 24 Nev. 306, an undertaking cannot be waived by stipulation.
On Rehearing
1. Appeal and Ebbob—Undertaking on Appeal—Waiver.
Under the civil practice act, sec. 348 (Comp. Laws, 3443), providing that the undertaking may be waived by the written consent of the respondent, and Comp. Laws, 2621, providing that an attorney may bind his client in any of the steps of the action by his agreement filed with the clerk, an undertaking on appeal is not essential where the attorney for respondent entered into a written stipulation waiving an undertaking; such stipulation being filed with the clerk. (Marx v. Lewis, 24 Nev. 306, reversed.)
2. Fraudulent Conveyances—Change of Possession—Sufficiency.
The object of Comp. Laws, 2703, providing that every sale, unless accompanied by an immediate delivery, and followed by an actual and continued change of possession, shall be conclusive evidence of fraud as against creditors, is the prevention of fraud, and what will amount to change of possession within the statute must be determined in each case, having relation to the character and situation of the property at the time of sale.
3. Fraudulent Conveyances—Change of Possession—Possession of Former Owner as Employee of Grantee.
A saloon keeper sold his business and liquors to his brother in payment of a prior debt, and executed a bill of sale, which was properly recorded. The brother took possession, and continued the business as before. Both worked a shift as bartenders substantially as before, with the exception that the brother acted as proprietor and the other worked on a salary. The saloon sign, containing only the surname, was not changed. Business houses and customers were notified of the change. Neither the lease on the premises nor the license was transferred. Held, that the sale was not fraudulent in law, within Comp. Laws, 2703, providing that every sale unless accompanied by an immediate delivery, followed by an actual and continued change of possession, shall be conclusive evidence of fraud as against creditors, as the possession of the buyer was not a concurrent or joint possession with the seller, but was exclusive.
4. Appeal and Ebbob—Fbaubulent Teansfeb—Question fob the Trial Court.
Whether a sale was fraudulent in fact as against creditors of the seller is for the trial court to determine.
Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye County; J. P. O’Brien, Judge.
Action by F. P. Hoffman against J. J. Owens, Sheriff of Nye -County, and another. From a judgment in favor of plaintiff, defendants appeal.
Dismissed. On rehearing. Former opinion overruled, and judgment and order affirmed.
The facts sufficiently appear in the opinion.
P. E. Keeler, for Appellants:
I. Since there was no such change of possession as the statute contemplates, the conveyance was void and the property remained subject to attachment by the creditors of J. H. Hoffman. (Goardy. Gunn, 29 Pac. 918; Cooky. Rockford, 12 Pac. 568; Goldstein y. Nunan, 6 Pac. 451; Allen y. Massey, 17 Wall. 351; Lloydy. Williams, 40 Pac. 243; Stevens y. Irwin, 15 Cal. 503; Gh'adyy. Baker, 19 N. W. 417; 24 Cent. Digest, cols. 608, 714, sec. 481.) Recording of bill of sale is not a substitute for change of possession. (Bassingery. Spangler, 10 Pac. 813; Kuydendall v. McDonald, 57 Am. Dec. 212.) If the vendor remains in possession as agent, it is not such actual change of possession as the law contemplates. (Grant v. Lewis, 80 Am. Dec. 785; Rothgerbery. Gough, 52 111. 436; Young v. Youngman, 25 Pac. 209; Steinburger v. Schulin, 45 Mo. 521.)
II. The possession must be exclusive and the change such as to give evidence to the world of the claims of the new owner. (Gi'ayy. Sullivan, 10 Nev. 429; Ewing v. Merkley, 4 Pac. 248; Stevensy. Irwin, 15 Cal. 503;. Bassingery. Spangler, 10 Pac. 813.) The delivery of the bill of sale was not even symbolic delivery of the personalty. (Comaitay. Kyle, 19 Nev. 38.)
III. Plaintiff must recover on the strength of his own title and must show a valid sale by a preponderance of the evidence. (Gallick v. Bordeaux, 78 Pac. 583.)
L. A. Gibbons, for Respondent.
By the Court,
Norcross, C. J.:
The record on appeal in this cause does not contain an undertaking on appeal, but, in lieu thereof, counsel for the respective parties have stipulated "that the giving of an undertaking on' appeal by the defendants and appellants in the above-entitled action be, and the same is hereby, waived, and the said appeal may be considered and heard by the Supreme Court of the State of Nevada in all respects as if an undertaking on appeal had been duly filed!' Section 341 of the civil practice act (Comp. Laws, 3436) provides: "To render an appeal effectual for any purpose, in any case, a written undertaking shall be executed on the part of the appellant by at least two sureties," etc.
In the case of Marx v. Lewis, 24 Nev. 306, this court specifically held that air undertaking on appeal could hot be'waived. We quote from the opinion in that case the following excerpt: "The method of procedure in taking appeals is regulated by statutes. Section 327 of the civil practice act (Comp. Laws, 3422) in direct terms confers authority upon this court to review judgments and orders from which appeals' can be taken in the manner prescribed in the act, 'and not otherwise.' Under the language used in these sections we have no power or authority to review any question presented in this record. The attempt to stipulate a waiver of the notice and undertaking can be of no effect, for the reason that such attempt is doing that which the statute says cannot' be done. The language used 'and not otherwise,' precluded the intention of conferring authority to 'review appeals under such stipulation as completely as it would were such intention expressed in direct terms. The same may be said of the language used in section 341, sivpra, requiring the undertaking to 'render an appeal effectual for any purpose.'"
Authorities may be found that an undertaking upon, appeal may be waived, and a number of these so holding are cited in the prevailing opinion in the case of Smith v. Wells Estate Co., 29 Nev. 411, 416. Whether or not any of the authorities cited are opposed to the decision of the question heretofore rendered by this court would depend upon the provisions of the statute controlling in the particular case. Authorities also exist taking the same position as the Marx v. Lewis case, swp'a; for example, the case of Santom v. Ballard, 133 Mass. 464. The court is inclined to the view that a more liberal rule in matters pertaining to perfecting appeals would be advantageous, but we are not at liberty, in view of the statute, to declare such rule, especially so, after this court has construed the statute in question as it did in the Marx v. Lewis case. If the statute in this respect is more strict than it ought to be, the remedy is with the legislature.
For the reasons given, the appeal is dismissed.
Sweeney, J.: I concur.