Deitz v. Whyte

• Citation: 109 S.E. 212
• Parties: DEITZ. v. WHYTE.
• Decision Date: 22 September 1921
• Court: Supreme Court of Virginia

109 S.E. 212

DEITZ.

v.WHYTE.

Supreme Court of Appeals of Virginia.

Sept 22, 1921.

Error to Circuit Court, Tazewell County.

Action in attachment by William P. Deitz, against Samuel G. Walker, wherein W. W. Whyte filed a petition claiming ownership of the property levied on. Judgment for the intervening claimant and plaintiff brings error. Affirmed.

Sexton & Roberts, of Bluefield, W. Va., for plaintiff in error.

R. O. Crockett, of Tazewell, for defendant in error.

BURKS, J. In June, 1918, Deitz sued out an attachment against Samuel G. Walker, and had the same levied on certain mules and a horse which the plaintiff claimed was the property of the defendant Walker. The defendant in error, W. W. Whyte, filed a petition in the cause claiming the ownership of the property levied;on, and an issue was made up upon this petition and tried by a jury. After a full hearing of the evidence the jury rendered a verdict in favor of Whyte. The trial court refused to set aside this verdict, and to the judgment entered thereon the writ of error in this case was awarded.

The mules and horse had been purchased by Samuel G. Walker & Co. in St. Louis in April, 1917, for work on the county roads in West Virginia, where the firm of Samuel G. Walker & Co. had a large contract. In May, 1917, Samuel G. Walker came to Mr. Whyteand requested a loan of $3,000, which Mr. Whyte refused to make, but on the contrary told Walker that, while he would not make him the loan, he would purchase the mules and horse from the firm at $3,000. The sale was consummated on May 9, 1917, when a bill of sale for ten mules and one horse was executed and delivered to Whyte. Whyte did not at that time take possession of the mules and horse, but left them in the possession of Samuel G. Walker & Co. until they could complete the contract on which this stock was then being used. This contract was not completed until about April 1, 1918, when the mules and horse were delivered to H. P. Harman, agent for Mr. Whyte. Whyte had previously sent H. P. Harman to Virginia to engage pasture for this stock in Russell county, and when the contract of Samuel G. Walker & Co. aforesaid was completed about April, 1918, Harman, as the agent for Whyte, carried the mules and the horse to Tazewell county and put them to pasture in accordance with the contract previously made therefor. The bill of sale aforesaid was never recorded in either West Virginia or Virginia.

It was earnestly contended by counsel for Deitz that there never was any sale of this property by Walker & Co. to Whyte, and that Whyte had simply loaned to Samuel G. Walker & Co. the sum of $3,000, and that the bill of sale was nothing more than a mortgage to secure this loan. It is further contended for Deitz that if there was any sale the possession was allowed to remain with the sellers, and that the bill of sale was void as to Deitz because never recorded. It was also contended on behalf of Deitz that the transaction between Samuel G. Walker & Co. and Whyte was fraudulent as to Deitz, and the property was liable to the attachment. All of these contentions of Deitz were earnestly denied by Whyte, and there was a full hearing on the merits in the trial court.

The defendant in error, Whyte, moves this court to dismiss the writ of error on the ground that the trial court had no jurisdiction of the attachment. The attachment was sued out under section 2961 of the Code of 1904, and it is insisted by the defendant in error that at the time the attachment was sued out the plaintiff in error had a decree for the amount of his debt against Samuel G. Walker & Co. upon which he could issue an execution at any time, and that therefore an attachment under section 2961 did not lie. Upon the record as it stands the trial court appears to have had jurisdiction of the attachment under section 2961, and if there was a lack of jurisdiction it was because of the existence of facts not made to appear in the present record. The defendant in error relies upon the statement in the affidavit for the attachment as showing that there had been a decree upon which an execution could issue, but the affidavit to the attachment does not show this. It states the amount of affiant's debt, the time from which it bears interest, and also claims the costs of a certain chancery suit pending in the circuit court of Tazewell county, Va., in the name of Deitz v. Samuel G. Walker, and refers to the 'Whole "as shown by a decree of said court entered at the May, 1918, term thereof." It is not stated that any decree had been entered therefor, or that any execution could have been issued thereon. The decree is simply referred to as showing the amount due. No copy of the decree is filed, and no evidence was offered to show that Deitz could subject the property in any way save by the attachment. We cannot presume from this mere reference that Deitz had a personal decree against Walker for the amount aforesaid. There may or may not have been such a decree, or a decree may have been rendered and execution thereon suspended, or there may have been other reasons showing that Deitz had no right to sue out an execution. At all events, the affidavit and attachment conform to the statute, and the record does not show anything to defeat the jurisdiction. For these reasons the motion to dismiss the writ of error is overruled.

The first assignment of error is to the action of the court in refusing to set aside the verdict of the jury as contrary to the evidence, or without evidence to support it. The main argument presented in the petition is under this assignment of error. It is earnestly insisted that the transaction was fraudulent, and that the bill of sale was void because not recorded. There are undoubtedly many badges of fraud set forth in the petition and earnestly insisted on. The evidence for the plaintiff and defendant, respectively, is directly in conflict on a number of the most material questions involved. There can be no doubt that if the case had been submitted to the jury on the testimony in behalf of Whyte alone, a verdict in his favor must have been found. Whether the transaction was a sale or a mortgage, or whether or not it was fraudulent, were questions properly submitted to the jury with whose verdict we cannot Interfere.

The bill of sale was executed in West Virginia, and the property remained with the seller only in West Virginia, so that the Virginia statute has no application thereto. Before the property was removed to Virginia, according to the testimony for Whyte, it was turned over to him as purchaser. This occurred before Deitz had acquired any right whatever to subject the property to the payment of his debt. When the property was brought into Virginia it was brought as the property of Whyte. The jury was fully instructed on this subject at the instance of Deitz, and the finding of the jury settled thequestion that the property was in the possession of Whyte when brought into Virginia. In Sydnor v. Gee, 4 Leigh (31 Va.) 535, it was held:

"If an absolute sale of chattels, fair in itself, be not accompanied and followed by immediate possession, but possession is taken by the vendee before the rights of any creditqr of the¹ vendor attach, the sale is good against the vendor's creditors."

In the course of his opinion in that case. Judge Tucker said, at page 549:

"It is strongly my impression that the failure to deliver possession, where there is no real fraud intended, does not attach fraud to the transaction forever; and that a subsequent delivery will make it valid and effectual against all creditors whose debts are contracted, and all purchasers whose bargains are made, after such subsequent delivery."

See, also, Clark v. Ward, 12 Grat. (53 Va.) 440.

In Poling v. Flanagan, 41 W. Va. 192, 23 S. E. 685, it was held that—

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