Fair v. Wynne

• Decision Date: 01 May 1911
• Citation: 137 S.W. 78,155 Mo.App. 341
• Parties: J. U. FAIR, Appellant, v. ROBERT A. WYNNE, Defendant, VIRGIL WYNNE, Interpleader, Respondent
• Court: Kansas Court of Appeals

137 S.W. 78

155 Mo.App. 341

J. U. FAIR, Appellant, v. ROBERT A. WYNNE, Defendant, VIRGIL WYNNE, Interpleader, Respondent

Court of Appeals of Missouri, Kansas City

May 1, 1911

Appeal from Daviess Circuit Court.--Hon. Arch B. Davis, Judge.

Judgment affirmed.

A. G Knight, Dudley & Selby and O. N. Gibson for appellant.

S.W Brandom and J. C. Wilson for respondent.

OPINION

ELLISON, J.

Plaintiff brought an action by attachment and the sheriff levied upon a lot of personal property consisting partly of live stock. The interpleader claimed several head of horses and some of the other property and filed an interplea therefor. Plaintiff disputed his claim and a trial resulted in favor of the interpleader.

Interpleader is the son of the defendant and his claim is based on a gift from his father and the principal contention between the parties is whether there was a sufficient change of possession and dominion over the property to make a legal gift. We have gone over the entire evidence as set out in the record and after considering it in connection with the oral argument of the respective counsel, have concluded that it amply justifies the verdict and judgment rendered in the trial court.

Interpleader was a minor at the times of the gifts made to him, and resided with his father on a farm as a member of his family and it seems to us that the whole of plaintiff's claim of insufficiency of change of possession and dominion over the property is based on his failure to consider that fact. The sufficiency of possession necessarily depends on the circumstances surrounding the parties and the necessity of the situation. To make a valid levy on personalty, an officer must seize the property, yet it would not be supposed that it was necessary or possible for him to take all kinds of personalty into bodily possession. It suffices if he post notice on the property or do something to indicate his intention. So. it being recognized as valid for a husband or father to make a gift to his wife or minor son, it should not be expected that the subject of the gift should be taken from the premises. As asked by Judge COOLEY in Davis v. Zimmerman, 40 Mich. 24, must the wife separate from the husband in order to be competent to accept a gift from him? So we can appropriately ask here, what was expected of the interpleader as a minor in the family, more than the evidence shows. Neighbors and friends knew of the...