Craig v. Fowler

• Citation: 13 N.W. 116,59 Iowa 200
• Parties: CRAIG v. FOWLER.
• Decision Date: 13 July 1882
• Court: Iowa Supreme Court

59 Iowa 200

13 N.W. 116

CRAIG

v.FOWLER.

Supreme Court of Iowa.

Filed July 13, 1882.

Appeal from Green circuit court.

Action to recover the value of a stock of drugs, medicines, and other merchandise seized and sold by defendant, who was the sheriff of the county, on certain executions issued upon judgments against John Craig and S. R. Craig, plaintiff's husband and son. There was a judgment upon a verdict for plaintiff. Defendant appeals.H. S. Winslow, for appellant.

McDuffie & Howard and C. H. Jackson, for appellee.

BECK, J.

1. The defendant alleges that after the levy of the executions, and upon receiving a notice from plaintiff that she was the owner of the property seized, an indemnifying bond was executed by the plaintiffs in execution, in pursuance of his demand therefor, which was by defendant returned to the district court of the county wherein the levy was made. The part of the answer containing these allegations was stricken out, on the ground that it set up no defence to the action. This ruling is the first ground of complaint on the part of defendant.

Code, § 3058, provides that an action against an officer seizing property on execution is barred, if an indemnifying bond has been taken and filed in the proper court as required by sections 3055, 3056. Under these statutes, defendant insists that an action cannot be maintained against him.

We have held that section 3058, so far as it prohibits an action of replevin against an officer to recover the specific goods seized by him, is unconstitutional and void. Towle v. Mann, 53 Iowa, 42; [S. C. 3 N. W. REP. 814.] But it is insisted that the provision, in so far as it is applicable to an action to recover the value of property seized by the officer, is not in conflict with the constitution.

The provision, if it be enforced, would bar a remedy against an officer who seized goods that are not subject to the execution in his hands, for the reason that they are not the property of the defendant against whom the writ issues. When the property is seized under such circumstances the officer is a trespasser. His writ does not authorize him to seize the property. The owner has a valid claim against him for the value of the goods seized. This claim, of course, is the property of the owner of the goods. We know of no power possessed by the legislature to deprive the owner of the goods of this property right which he holds against the officer. Surely the legislature could not by enactment provide that a debtor, by making prescribed arrangements with another person, could cause such person to be substituted as the debtor and himself escape liability to the creditor. Yet this is the precise thing the statute in question aims to accomplish. It declares that the trespasser shall cease to be the debtor of the party whose goods are wrongfully taken, if other persons will, in the manner prescribed, take his place.

It is no reply to this argument to insist that the statute is intended for the protection of the officers of the law. The law does not and ought not to protect them when they violate the rights of property of persons against whom they have no writs. But they have ample protection by the indemnifying bonds which they may demand. If these bonds are sufficient they can suffer no loss.

We think the statute, if enforced so as to bar actions against ministerial officers in cases like the one before us, would result in gross abuses and oppression. The reasons and principles upon which the decision in Towle v. Mann is based, are applicable to the case of an action to recover the value of goods illegally seized by a ministerial officer.

2. The plaintiff in this case is a married woman, and the wife of one of the execution defendants, and the mother of the other. The issue in the case involved the question as to whether the property levied upon belonged to her or to her husband and son. She claimed that she bought the goods with money she held in her own right. On the other hand, defendant insists that the property was bought with the money of her husband. Plaintiff testifies that she loaned her husband money, which he invested in property, and afterwards repaid her part, at least, of the sum borrowed, which she invested in the merchandise in question. The husband was involved in debt, and conveyances and mortgages of the property to the son are shown. There is evidence tending to show that he attempted to cover his property from his creditors.

The defendant, in the examination of the plaintiff and other witnesses, asked many questions tending to show the business transactions of the father and son, their declarations showing an intent to defraud their creditors, and the knowledge of the plaintiff of their practices and purposes. This evidence was, we think, erroneously excluded. The burden rested upon defendant to show fraud on the part of the husband in covering up his property by causing the title to be held by his wife. The wife's knowledge and participation in the fraud defendant was required to establish. Fraud cannot always be shown by direct evidence, but is usually proved by circumstances. Neither can the knowledge of or participation in fraudulent designs and transactions, be proved in many cases except by circumstances. Those who are charged with fraud in transactions investigated in a court of justice, when called upon to give evidence in regard to such charges, are always subject to such an examination as will disclose their knowledge of the fraud and purposes connected with the transactions. So, if, on account of the relations of the parties, confidence may be presumed to exist between them, the law will favor such an examination, when they are required to testify touching the matters alleged to be fraudulent as will disclose their true character. Fraudulent practices of like character about the time of the transactions in question, and knowledge of such practices by one charged with participation in the fraud, may be shown.

The evidence offered and excluded tended to establish, we think, facts and circumstances which would have aided to disclose the real purpose of the parties. It ought to have been admitted. The court below ought to have given greater latitude to the examination of plaintiff and other witnesses. McNorton v. Akers, 24 Iowa, 369;Price v. Mahoney, Id. 582. It is not necessary here to recite the questions which we think defendant ought to have been permitted to ask. The application of the rules we have stated will clearly indicate at another trial what evidence ought to be admitted.

3. There was no evidence tending to show that the goods in controversy were purchased by plaintiff of her husband and son. She testified that she had money in her own right which she loaned to her husband, and which he subsequently repaid. This money was used by him in...