Englehart v. Sage

• Decision Date: 09 April 1925
• Docket Number: 5650.
• Citation: 235 P. 767,73 Mont. 139
• Parties: ENGLEHART v. SAGE, Sheriff.
• Court: Montana Supreme Court

235 P. 767

73 Mont. 139

ENGLEHART v. SAGE, Sheriff.

No. 5650.

Supreme Court of Montana

April 9, 1925

Rehearing Denied April 25, 1925.

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Action by E. O. Englehart against Russel Sage, as Sheriff of Yellowstone County. Judgment for plaintiff, and defendant appeals. Affirmed.

W. B Waldo, of Billings, for appellant.

W. V Beers, of Billings, for respondent.

HOLLOWAY J.

On September 12, 1923, Hugh Tanaka entered into a contract in writing to sell to E. O. Englehart an Owens bean separator, and possession of the property was thereupon delivered to Englehart, but by the terms of the contract the title remained in Tanaka until the purchase price should be paid in full. During the fall Englehart employed the separator to thresh beans for ranchers in Yellowstone county, the last work being done for Makino and Nakimura on the Bair ranch, for which they owed $450 or thereabouts. When this work was completed, Englehart left the separator at the Bair ranch, apparently in charge of Makino and Nakimura. D. W. MacKay commenced an action against Tanaka and caused a writ of attachment to be issued and placed in the hands of the sheriff for service. On December 4 the sheriff delivered a copy of the writ to Makino and Nakimura, together with a notice that any debt due from them to Tanaka and other property in their possession belonging to Tanaka were attached. On the same day Makino and Nakimura made return to the sheriff that they were indebted to Tanaka in the sum of $432 and that they had in their possession the separator belonging to Tanaka. When Englehart demanded payment of the threshing bill, Makino and Nakimura informed him that the debt had been attached, and when he made a third party claim to the sheriff that he owned and was entitled to the separator and the money due from Makino and Nakimura, MacKay furnished an indemnity bond pursuant to the provisions of section 9273, Revised Codes, and the sheriff refused to release the property to him. Englehart then instituted this action against the sheriff to recover damages for the alleged conversion of the property, and prevailed in the lower court. The defendant has appealed from the judgment.

The two questions presented are: (1) Had the title to the separator passed from Tanaka to Englehart before the writ of attachment was levied on December 4; and (2) was there a conversion of the property by the sheriff?

1. The contract did not evidence a sale of the separator to Englehart. It was only an executory agreement to sell ( State ex rel. Malin-Yates Co. v. Justice of the Peace Court, 51 Mont. 133, 149 P. 709), and title remained in Tanaka until the purchase price was paid (Bennett Bros. Co. v. Tam, 24 Mont. 457, 62 P. 780). Whether payment was made exactly as the sale contract provided is not a matter of any concern to the sheriff or MacKay. If in fact the purchase price were paid before December 4, title to the separator passed to Englehart, and the property was not subject to attachment in the action against Tanaka.

Defendant has failed to have the transcript printed as required by subdivision 1, rule VI, of the rules of this court, and is not entitled to have the evidence considered; nevertheless we have reviewed it, but no useful purpose would be served in setting forth even a brief summary. The evidence is in sharp conflict and not as satisfactory as it might be, but the jury found that Englehart was the owner of the separator and the debt due from Makino and Nakimura at the time the writ of attachment was levied, and we think the evidence sufficient to justify the finding.

2. In making the levy the sheriff proceeded upon the assumption that the separator was in the actual possession of Makino and Nakimura, and for the purposes of this appeal we accept that theory as correct. Our statute makes no distinction between property actually seized by the sheriff under a writ of attachment and property attached by service of a copy of the writ upon and notice to the person in possession. The two methods of making the levy are different, but the result is the same-the property is attached and is conserved for final execution after the action has proceeded to judgment.

Section 9276, Revised Codes, provides:

"If judgment be recovered by plaintiff [in the attachment action], the sheriff must satisfy the same out of the property attached by him," etc. Moreland v. Monarch Mining Co., 55 Mont. 419, 178 P. 175.

It is settled in this jurisdiction, and elsewhere generally, that the attachment of one person's property to satisfy a claim against another is a conversion of the property ( Western Mining Supply Co. v. Quinn, 40 Mont. 156, 105 P. 732, 8 L. R. A. [N. S.] 214; 26 R. C. L. 1120), and it is altogether immaterial that the sheriff did not take actual possession of the separator in this instance. In Interstate National Bank v. McCormick, 67 Mont. 80, 214 P. 955, this court said:

"Any distinct act of dominion wrongfully exerted over one's property in denial of his right, or inconsistent with it, is a conversion. The action of trover being founded upon a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such rights amounts, in law, to a conversion. It is not necessary to a conversion that there should be a manual taking of the thing in question by the defendant; it is not necessary to be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff's right? If he does, that is, in law, a conversion, be it for his own or another person's use."'

But it is urged earnestly that there was not a...