Farm & Cattle Loan Co. v. Faulkner

Decision Date12 January 1926
Docket Number1208
Citation242 P. 415,34 Wyo. 199
PartiesFARM & CATTLE LOAN CO. v. FAULKNER, ET AL [*]
CourtWyoming Supreme Court

APPEAL from District Court, Weston County; HARRY P. ILSLEY, Judge.

Action in replevin by Farm & Cattle Loan Company against Chaloe Faulkner, as County Treasurer of Weston County and another. There was judgment for defendants and plaintiff appeals.

Reversed and Remanded.

E. C Raymond, T. W. LaFleiche and John R. Russell for appellant.

The trial court held that the chattel mortgage was a valid lien upon the property; it developed upon respondents to establish a tax lien under Section 2842 C. S.; Lobban vs State, 64 P. 82; 1 S. Dak. 539; Lee vs Stanard, 61 P. 234; Bazar Co. vs. McNichols (Colo.), 56 P. 672; the cattle taken under the writ of replevin were not in Weston County in 1921; they were in fact purchased in New Mexico in the spring of 1922; therefore the attempt to tax them for 1921 was void; filing of an affidavit of prejudice and for a change of judge disqualifies the judge forthwith; verdict should be vacated for prejudice or passion; Cawley vs. City Ry. Co., 77 N.W. 169; Turnbull vs. Rivers, 15 Amer. Dec. 622; there was no evidence to show that the cattle were in Weston County in 1921. The verdict is not sustained by evidence and should have been vacated; Clinch vs. Kinova, 15 So. 427; Pepperill vs. City Park, 45 P. 743; City vs. Shropshire, 37 S.E. 168; Hickey vs. Ry. Co., 26 N.W. 112; verdicts based upon conjecture cannot stand; Pleasance vs. Fant, 22 Wall. 116; the verdict should have been for appellant; Christy vs. Holmes, 57 Ind. 314; Backus vs. Clark, 83 Am. Dec. 437; Moore vs. Mo. P. Ry. Co., 28 Mo.App. 622; Birmingham vs. Bradley, 23 So. 53; Phillips vs. Laughlin, 58 A. 64; I. & G. M. Ry. Co. vs. Moore, 41 So. 70; Carroll vs. Texarkana Co., 143 S.W. 586; Koenig vs. Co., 122 P. 16; Clarke vs. Ry. Co., 87 A. 206 Wardlaw vs. Frederick (Ga.), 79 S.E. 523.

H. Glenn Kinsley and James A. Greenwood for defendants and respondents.

The cattle were sold under a tax lien levied in 1921. Plaintiff failed to show that its lien attached to the particular cattle in question and therefore failed to show right of possession. The cattle sold for taxes, and are not the cattle or any part thereof, described in the chattel mortgage. Plaintiff had no mortgage on the cattle in controversy in 1921, nor at any time; Cheesman vs. Fenton, 13 Wyo. 436 Kelly vs. Lewis (Colo.), 88 P. 388; the evidence showed that the cattle sold by defendant, Faulkner, had been seen in Weston County in the fall of 1921. Representatives of the plaintiff company were endeavoring to avoid the payment of taxes on these cattle, as shown by the evidence; the verdict is supported by the evidence and should be sustained.

John R. Russell and E. C. Raymond in reply.

The answer of defendant Quest, admits that 60 head of cattle with the same brands as the property described in the mortgage, were seized and sold by the County Treasurer. This disposes of the question of identity. It was proven that the cattle were shipped to Weston County and it was shown that they were all rebranded after their arrival. Live stock is described by brands in this state. The cattle were received in Wyoming after the mortgage had been executed. It was unnecessary to offer evidence of identity, for the reason that they were fully identified by the pleadings; Adamson vs. Fagan, 47 N.W. 56; Fordyce vs. Neal, 40 Mich. 705; Adams Co. vs. So. Omaha, 123 F. 641; plaintiff paid its taxes in Weston County. The judgment should be reversed, with directions to render a judgment for plaintiff.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is an action in replevin brought on December 18, 1922, by the Farm and Cattle Loan Company, a South Dakota corporation, against the County Treasurer of Weston county, and S. M. Quest, to recover 60 head of yearling cattle seized by the County Treasurer of Weston county under a distraint warrant to satisfy some taxes levied upon the property of E. Roy Townsend in 1921, and which said cattle were sold by said treasurer to said Quest. The case was tried to a jury, which returned a verdict in favor of the defendants. Judgment was entered upon the verdict and plaintiff appeals.

It is shown by the petition and admitted in the answer that said Townsend, a resident of Lawrence county, South Dakota, borrowed of appellant the sum of $ 85,000 on May 2, 1922. He made a promissory note for that amount payable November 2, 1922, and in order to secure said note, executed to appellant a chattel mortgage upon 1269 head of cattle, consisting of 165 head of stock cows, two to six years old, 400 head of steers, three to four years old, 630 head of yearling heifers and steers, 70 head of calves and 4 head of bulls. The brands are given in signs, but, as interpreted in the testimony, is given in the mortgage as follows:

"All branded quarter circle J, E reverse R, T on left side and P milliron on right side."

By the terms of the said mortgage the appellant was entitled to the immediate possession of the property described in the mortgage at the time of the commencement of the action herein, as against the mortgagor, and it made a demand on respondents for the return of said property, before starting this suit.

The cattle of Townsend, it seems, ranged and had ranged partially in South Dakota and partially in Weston county in this state. During the year 1921, the property of Townsend in said Weston county was assessed for taxation. It does not appear what the property was. The total tax levied was the sum of $ 944.42, which was not paid and a penalty of $ 144.78 had accrued thereon at the time of the commencement of this action. About November 1, 1922, the treasurer of said county seized 60 head of the yearling cattle described in said mortgage, in order to satisfy the amount of said tax and penalty, and on November 11, 1922, sold them at public auction to S. M. Quest for $ 1500. The appellant claims that these cattle were not included in the assessment above mentioned, that they were not in the state of Wyoming in 1921, but were shipped from New Mexico in May, 1922, and were marked with the "quarter circle J brand" after they came to this state. The testimony shows that 350 yearlings only were so shipped, although 630 yearlings are described in the mortgage, leaving 280 yearlings which were not so shipped, and it is the contention of the respondents that the 60 head of cattle seized as aforesaid were part of the 280 head that were in Weston county in 1921 and were included in the assessment above mentioned. There is, however, no direct testimony in the record showing that the 280 head of cattle were in said county during that year. The main witness on behalf of appellant was Burt Warren, who testified definitely that the 60 head of cattle seized by the county treasurer above mentioned were part of the cattle shipped from New Mexico in the month of May, 1922. Other testimony in the record tends to show the same fact. The cattle so shipped are described as "Southern cattle." Some witnesses on behalf of respondents stated that there were some "native" cattle among those seized by the county treasurer, without stating how many. Other witnesses testified that they saw some calves and cows bearing the "quarter circle J" brand in Weston county during the year 1921; further that they saw some yearlings with that brand in said county in the spring of 1922, but before the month of May. The number of them, however, is not attempted to be fixed in either case. Burt Warren stated that, aside from the yearlings shipped from New Mexico, there were only five or six head of Townsend's yearlings in said county in 1922, but that these were not the cattle seized by the county treasurer, and it may be that the calves seen by the other witnesses in 1921 and the yearlings in 1922 were the same cattle mentioned by Warren. The assessment schedule of Townsend for the year 1921 was not introduced in evidence, nor, as heretofore stated, is there anything in the record to show what property of his was assessed in Weston county during that year. Many of the facts here set out should not be further discussed by us at this time in the view that we take of the case, as it stands at present, but we have set them out in order to show that we have borne them in mind in arriving at our conclusion.

1. It appears from the record that the note and mortgage hereinbefore mentioned were renewed in the latter part of December, 1922, and that the first mortgage was released shortly thereafter. Respondent accordingly claimed in the court below, and make the claim here, that appellant had no interest in the cattle seized, so as to authorize it to bring this action. Much testimony was introduced by which it was sought to show that the release was made and filed as a result of trickery of some officers of Weston county. The court instructed the jury that the mortgage of May 2, 1922, was a valid, subsisting lien against the property in controversy at the time of the commencement of this action and had never, as a matter of law, been released. The trial court, therefore, overruled the foregoing contention of respondents. No complaint of that action of the court is made and the point referred to is, accordingly, not before us.

2. A number of errors are assigned herein, but we think that it is not necessary to consider any of them except the one that the verdict and judgment are not sustained by the evidence. By section 2842, W. C. S. 1920, "all taxes levied upon personal property of any kind whatsoever, shall be and remain a perpetual lien upon the property so levied upon until the whole of such tax is paid." There is no provision that the tax is a lien on...

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