Epperson v. Crozier
| Decision Date | 30 March 1906 |
| Docket Number | Civil 958 |
| Citation | 10 Ariz. 30,85 P. 482 |
| Parties | WILLIAM EPPERSON, Plaintiff and Appellant, v. JOHN W. CROZIER, Defendant and Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Mohave. Richard E. Sloan Judge. Reversed and remanded.
The facts are stated in the opinion.
E. M Sanford, for Appellant.
This is a suit between the parties to the contract evidenced by the bill of sale, and no acknowledgment was required. The acknowledgment is not an essential part of the instrument. As to parties and persons with actual notice, neither an imperfect acknowledgment nor a total want of acknowledgment affects the validity of the instrument unless there is some special penalty created by statute. Sicard v. Davis, 6 Pet. 124, 8 L.Ed. 342, 3 Ross's Notes U.S.S. Ct. 237; 1 Ency. of Law, 2d ed., p. 488, note 4; Morrow v. State, 22 Tex. App. 239, 2 S.W. 624-626.
Under a statute in Texas Code, arts. 4562, 4563, 4564, similar to sec. 57, art. 6, Laws 1897 (Ariz.), it was held that the title passed even without bill of sale, if it can be proved that it was bona fide made. Wells v. Littlefield, 59 Tex. 556, 561. And it was held that the legal effect of an unacknowledged bill of sale was to pass the title. Morrow v. State, 22 Tex. App. 239, 2 S.W. 624, 626; Rankin v. Bell, 85 Tex. 28, 19 S.W. 877; Swan v. Larkin, 8 Tex Civ. App. 421, 28 S.W. 217.
Herndon & Norris, for Appellee.
The statute under consideration is in its nature, frame, and evident object, closely akin to and of the same class as section 17 of the statute of frauds, and should be similarly construed, -- i.e. strictly. The attempted sale sought to be proven was void under the statute for want of delivery, and for want of a bill of sale in the form and acknowledged (executed) in accordance with law. The paper offered was clearly ineffectual either to pass title or to show ownership or right of possession in plaintiff to any animal such as is involved in this suit (Hunt v. Bullock, 23 Ill. 258 320), and therefore could not base an action for trover and conversion. . . . It would seem that the authorities cited by appellant are based on statutes requiring acknowledgment as a prerequisite to record merely, and not, as in the statute under consideration, as a part of the execution of the instrument. We take it the requirement for acknowledgment of a bill of sale on a sale of cattle is analogous to the statutes requiring acknowledgments in certain forms by married women. It has been almost universally held that under these statutes an unacknowledged deed, or a defectively acknowledged deed, is void and passes no title. The statute does not go to the right of sale, but to the manner of execution of the conveyance. Danglarde v. Elias, 80 Cal. 65, 22 P. 69; Hollingsworth v. Flint, 101 U.S. 591, 25 L.Ed. 1028.
-- The appellant, William Epperson, brought suit in the district court of Mohave County to recover twenty-five hundred dollars alleged to be the value of mares and colts purchased by plaintiff from defendant on April 2, 1901, and "unlawfully converted and disposed of, to his own use, by defendant" in April, 1903, while still in defendant's possession.
The first assignment of error is that the court erred in rejecting a paper offered in evidence by plaintiff purporting to be a bill of sale dated April 2, 1901, signed by defendant, whereby defendant sold to plaintiff "all mares branded 'DR' on left hip and all sucking colts for the sum of $ 200," purchaser "agreeing to take them all off the range within six months from date." This instrument was not acknowledged, and was objected to by defendant upon that ground alone. The objection was sustained. Act No. 6 (p. 9) of the legislature of 1897, was in effect at the time of the execution of this bill of sale. Section 57 (p. 28) thereof provides as follows: "Upon the sale, alienation, or transfer of any horses, mules,...
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