Chavez v. Haynie

• Decision Date: 05 May 1924
• Docket Number: 10954.
• Citation: 225 P. 852,75 Colo. 414
• Parties: CHAVEZ v. HAYNIE, Sheriff.
• Court: Colorado Supreme Court

225 P. 852

75 Colo. 414

CHAVEZ v. HAYNIE, Sheriff.

No. 10954.

Supreme Court of Colorado, En Banc.

May 5, 1924

Error to District Court, Conejos County; J. C. Wiley, Judge.

Replevin by Luisita Chavez, a minor, by Luis F. Romero, her next friend against J. Parley Haynie, sheriff of Conejos County. Judgment of dismissal, and plaintiff brings error, applying for supersedeas.

Supersedeas denied, and judgment affirmed.

J. G. Scott, of Antonito, for plaintiff in error.

J. H Thomas, of Antonito, for defendant in error.

CAMPBELL J.

The plaintiff, Luisita Chavez, is the daughter of Luis F. Romero and his wife. When the child was about 9 months of age her parents 'gave' her to Fructuoso M. Chavez and Refugio C. Chave, his wife, but she has not been legally adopted. She is in law still the daughter of Mr. and Mrs. Romero. Ever since the gift she has lived with, and been supported by Mr and Mrs. Chavez, making occasional visits to her own father and mother. The relation, however, is that of parent and child, and has been so considered by her own parents and the Chavez family. Apparently there was some indefinite understanding that Chavez and his wife would at some time transfer to the child property, but the value was not agreed upon, and just what was the arrangement is not clear. However, in the year 1918 there is testimony that there was an epidemic in the country where the Chavez family lived and, fearing that one or both might become victims, and because of the understanding about transferring property, Chavez and his wife made a gift to her of an automobile, a piano, and various other articles of property, which was evidenced by what is called a bill of sale. It is doubtful if the written instrument was delivered to the child, but that is not of much importance. There was no actual or symbolical delivery of the automobile at the time of the gift or since, and such dominion as plaintiff has exercised over it has been through Mr. Chavez standing in the place of her father. The gift is alleged to have been made in October, 1918. From that time until this suit was brought in December, 1923, the automobile was not used much of the time by any person. The child, a minor, could not legally drive it in the public highways. Mr. Chavez made use of it, but not to any great extent. During one year a license for its use was issued to him and in his name, and it seems that he paid some taxes assessed upon it. At the time he made the gift he was indebted to the Commercial State Bank, which indebtedness he has since paid. After the date of the gift he transacted business with the bank and incurred a debt in December, 1919, which he has not paid. The bank brought suit against him upon the promissory note evidencing this debt, recovered judgment, and caused an execution sued out thereunder to be levied upon this automobile as the property of the defendant Chavez and wife, whereupon the minor child, by her next friend, her own father, Romero, brought this action in replevin against the sheriff, claiming the property as donee. Upon the issues joined, in a trial before the court without a jury, the court found that no such delivery by the donor to the donee, and no such possession by the latter as our statute of frauds requires, took place, and upon this finding rendered judgment dismissing the action, which judgment is the subject of this review.

Section 5113, C. L. 1921, of our statute of frauds makes it imperative that every sale by a vendor of goods and chattels in his possession be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold, otherwise it will be presumed fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith, and this presumption shall be conclusive. The statute applies to a gift as well as to a sale. In a series of case in this court, beginning with Wilcoxen v. Morgan, 2 Colo. 473, followed by Bassinger v. Spangler, 9 Colo. 175, 10 P. 809--perhaps our leading case--by Bartell v. Griffin, 47 Colo. 569, 108 P. 171; Goad v. Corrington, 61 Colo. 427, 158 Pa. 284, and Davis v. Patterson, 69 Colo. 226, 193 P. 662, this court has said in effect that the presumption of fraud, resulting from a failure to obey the statute, is conclusive and not subject to explanation. In the Davis Case, supra, this court, speaking by Mr. Justice Denison, said:

'Knowledge or information to put on inquiry, under the statute in question, is immaterial. * * * In Bassinger v. Spangler the attaching creditors knew all about the assignment to Bassinger.'

See 27 C.J. pp. 578-530.

In some of our decisions, as in the Bassinger Case, it is declared that, where the vendor and purchaser are members of the same family or household, and inhabiting the same house, this circumstance does not dispense with the necessity for a change of possession of property in possession of the vendor and reasonably susceptible of actual delivery. We have not, however, in any case expressly held that the rule applies in case of a sale or gift by a parent to a minor child living with him. The question, therefore, for decision is, and the specific question is one of first impression here, whether the rule applies to sales or gifts of personal property by a parent to a minor child living with the family. In the Bassinger Case, at page 179 of 9 Colo. (10 P. 809, 812) this court said:

'The statute is plain, positive, and peremptory. It admits of no excuse for leaving personal chattels, capable of manual delivery and removal, in the apparent possession of the vendor; nor does it admit of a construction whereby there may be a joint or concurrent possession in both vendor and vendee; nor can a case be taken out of the statute, nor can the statute by satisfied, by proving that the sale was bona fide and no fraud intended.'

In 27 C.J. p. 581, the author shows that the decisions are not harmonious upon the specific question, although in some cases such a gift is said to fall within an exception to the general rule, but the weight of authority is to the contrary. All of the cases that speak to the point say that such transactions are looked upon with suspicion and the evidence must be clear and satisfactory that no element of fraud enters into it. While the precise question has not been determined by this court, the governing principle has been announced. If, as our former cases say, the presumption of fraud in the case of a sale or a gift generally, which is not accompanied by an immediate delivery and a continued change of possession is conclusive, and if, as held in the Bassinger Case, supra, it is conclusive where the...