Felt v. Cleghorn

• Decision Date: 28 March 1892
• Citation: 29 P. 813,2 Colo.App. 4
• Parties: FELT et al. v. CLEGHORN.
• Court: Colorado Court of Appeals

29 P. 813

2 Colo.App. 4

FELT et al. v. CLEGHORN.

Court of Appeals of Colorado

March 28, 1892

Appeal from district court, Rio Grande county.

Action of replevin by W. Sherman Felt and Elmer S. Corthell, trading under firm name of Felt & Corthell, against John Cleghorn. Judgment for defendant. Plaintiffs appeal. Affirmed.

Holbrook & Brown and C.M. Corlett, for appellants.

E.F Richardson and Wm. E. Beck, for appellee.

BISSELL J.

For some time prior to the 1st of August, 1889, Ewing & Felt were engaged in the mercantile business in Monte Vista. At that time Corthell, one of the appellants, was operating a ranch near that place, and had some stock running on the range. About the 7th of August, negotiations were commenced between Ewing and Corthell for the sale and purchase of Ewing's interest in the firm, which was doing business under the firm name of Ewing & Felt. The deal was completed by the transfer of Corthell's stock to Ewing some time during that month. The time of the transfer is one of the most material elements in the controversy. The appellee Cleghorn, was sheriff of Rio Grande county, and on the 17th of August levied his writ upon a portion of the stock of goods which had been owned by Ewing & Felt to secure the satisfaction of a judgment which had been obtained against Ewing by one of his individual creditors. The present action was one of replevin by Felt & Corthell, who composed the new firm. They insisted that the transaction between Ewing and Corthell was bona fide, for a valuable consideration concluded before the levy of the writ. The bona fides of the sale, and the time of its completion, were the subjects of much testimony on either side. The appellants offered proof which tended to show that there had been a delivery of the goods and a payment of the consideration prior to the 9th of August. The appellee, on the contrary, introduced much evidence to show that there was no such change of possession as is essential under the law to transfer title as against an execution creditor, and also that in fact the sale itself was not completed until several days after the levy of the writ. On this issue, and as to all of its collateral facts, the jury found for the officer, and sustained his levy. It is clearly settled in this state that no sale of chattels can be maintained against the levy of an execution creditor unless there be a delivery of the goods, and an immediate change of possession. The necessary character of the transfer is clearly settled by our own adjudications. The possession must be open, notorious, and unequivocal; and it must be clearly evident from the circumstances put in proof that the title has passed from the seller to the purchaser. Cook v. Mann, 6 Colo. 21. The finding of the jury was against the appellants on this question, and their conclusion is not without sufficient basis in the testimony to be binding on this court. If this well-settled rule did not control the court it would be disinclined to reverse the case on the contention that the verdict was not supported by the evidence; for it is not presented by the abstract in that complete and satisfactory manner which is indispensable to enable a court to pass upon the weight and the sufficiency of the testimony.

In reality, there is but one question of much difficulty in the case, and this springs from the action of the officer in taking possession of a portion of the stock of goods to satisfy the individual debt of the copartner Ewing. The contention is that he was bound to take all of the goods into his custody, sell the interest of the copartner to satisfy the claim against him, and return the goods to the joint possession of the other partner and the purchaser at the sale. There is some doubt whether even this...