Coos Bay R. & E. R. & Nav. Co. v. Siglin

• Decision Date: 19 November 1894
• Citation: 38 P. 192,26 Or. 387
• Parties: COOS BAY, R. & E.R. & NAV. CO. v. SIGLIN.
• Court: Oregon Supreme Court

38 P. 192

26 Or. 387

COOS BAY, R. & E.R. & NAV. CO. v. SIGLIN.

Supreme Court of Oregon

November 19, 1894

Appeal from circuit court, Coos county; J.C. Fullerton, Judge.

Action of replevin by the Coos Bay, Roseburg & Eastern Railroad &amp Navigation Company against Z.T. Siglin. From a judgment for defendant, plaintiff appeals. Reversed.

J.W. Hamilton, for appellant.

S.H Hazard, for respondent.

WOLVERTON J.

This action was commenced June 18, 1892, to recover 924 steel T rails, with fish plates to match, and a lot of bolts and washers. The complaint alleges that on the 23d day of May, 1892, plaintiff was the owner, and entitled to and in possession, of said property, and that its value was $15,000 that on the date last named the defendant wrongfully and unlawfully took the same from the possession of plaintiff and unlawfully withholds and detains it, to plaintiff's damage in the sum of $5,000. The defendant answered, denying specifically the allegations of the complaint, except that the plaintiff was a corporation, and for a separate defense alleges, substantially, that at the times named in the complaint the defendant was sheriff of Coos county, Or., and had for service an execution, duly issued out of the circuit court of said county, upon a judgment, duly rendered in favor of one C.F. Miller and against one R.A. Graham, commanding defendant, as such sheriff, to make the sum of $2,000, with interest from February 25, 1891, at the rate of 8 per cent. per annum, the further sum of $32.85 costs, and the accruing costs upon the execution; that the goods and chattels described in the complaint were the property of the said Graham, and that the defendant levied upon the same as his property, and so held it at the date of the commencement of the action. The defendant further shows, by appropriate allegations, that the plaintiff gave the necessary undertaking, and took the property from his possession, and therefore demands its return. The reply puts in issue Graham's ownership of the property in dispute. Trial was had by jury upon these issues, which resulted in a verdict and judgment in favor of defendant, from which the plaintiff appeals.

The errors assigned arise upon the court's instructions to the jury. The instructions are lengthy, but the only portions thereof necessary for us to notice here are as follows "If you find from the evidence in this case that said R.A. Graham made to the plaintiff the sale, under which it claims to be the owner of the property in the complaint described, with the intent to hinder, delay, or defraud his creditors, and that plaintiff negotiated such sale with said R.A. Graham knowing of such intent on his part, or having knowledge of such facts and circumstances as would induce a reasonable person to believe that said R.A. Graham did have such fraudulent intent in making such sale, then and in that case I instruct you that such sale was fraudulent and void as to the creditors of said R.A. Graham, and as to the defendant in this action." "If you find from the evidence that said R.A. Graham transferred to the plaintiff the title to the property in complaint described, with intent to hinder, delay, or defraud his creditors, and that plaintiff accepted such transfer without paying to him any valuable consideration therefor, then and in that case I instruct you that the fact (if you find it to be a fact) that such transfer of title was made without any valuable consideration is to be taken by you as evidence that such transfer was fraudulent and void as to the creditors of said R.A. Graham. And it would make no difference whether said transfer was made verbally or by a written instrument; it would be void in either case." These instructions were challenged as not the law applicable to the case under the issues. The controversy is whether, in an action for the recovery of personal property, when the defense is sought to be made that such property was transferred to hinder, delay, or defraud creditors, such defense should be alleged in the answer, and, if so, whether it was error to instruct the jury upon that question when not so alleged. It was strenuously insisted by counsel for defendant at the argument that a denial of property in the plaintiff, and the plea of property in and possession of Graham, a third person, is sufficient to let in evidence that plaintiff's holding and title is in fraud of Graham's creditors. Many authorities are cited in support of this contention, but most, if not all, of them, are from states which have adopted either the common-law rules of pleading, the general denial, or "Not guilty," as applicable to actions of replevin. Some of these authorities hold that it is not necessary for an officer holding property under process to plead justification, but that the same may be proven under a general denial. It is now the settled doctrine of this court that, where a defendant claims a right of possession by virtue of a special property, it must be pleaded. Guille v. Fook, 13 Or. 577, 11 P. 277. And it would seem that where an officer attempts to justify under his writ he must not only show property in a third person, but he must connect himself with the title. Lewis v. Birdsey, 19 Or. 170, 26 P. 623. This far the defendant has complied with the rules of pleading recognized by our Code. He has justified as sheriff under an execution duly issued, and to him directed. He has also alleged property in a third person, and connected himself with the title; but he has not alleged fraud as against the creditors of R.A. Graham. We will now determine whether this is essential. In Buchtel v. Evans, 21 Or. 309, 28 P. 67, a case wherein it was insisted, as a matter of defense, that the employment of a real-estate broker by both buyer and seller is illegal and void as contra bonos mores, Bean, J., says: "At common law, under the general issue, the...