Hagan v. Cosper, Civil 2822

• Decision Date: 10 November 1930
• Docket Number: Civil 2822
• Parties: J. A. HAGAN, STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, and JOSEPH FINK, Appellants, v. GEORGE H. COSPER and MUSSETT COSPER, Appellees
• Court: Arizona Supreme Court

292 P. 1020

37 Ariz. 209

J. A. HAGAN, STANDARD ACCIDENT INSURANCE COMPANY, a Corporation, and JOSEPH FINK, Appellants, v. GEORGE H. COSPER and MUSSETT COSPER, Appellees

Civil No. 2822

Supreme Court of Arizona

November 10, 1930

APPEAL from a judgment of the Superior Court of the County of Greenlee. Gerald Jones, Judge. Judgment affirmed.

Messrs Sloan, Holton, McKesson & Scott and Mr. T. E. Allyn, for Appellants.

Messrs Ellinwood & Ross, Mr. John E. Sanders and Mr. James S. Casey for Appellees.

OPINION

LOCKWOOD, C. J.

J. A. Hagan brought suit in the superior court of Greenlee county to recover certain cattle then in the possession of George H. and Mussett Cosper, and under a writ of replevin issued in the case obtained possession of 753 head of cattle. The Cospers answered, setting up ownership of the cattle in George H. Cosper, and prayed for an alternative judgment against Hagan under the statute. Later, Joseph Fink, claiming an interest in the cattle under a contract of purchase made with Hagan, was permitted to intervene in the case, alleging ownership in Hagan, subject to Fink's contract of purchase. The case was tried to the court without a jury, and findings of fact and conclusions of law thereon filed, upon which the court returned judgment in favor of defendant George H. Cosper in the sum of nearly $46,000. A motion for a new trial was made, and in the course of the argument thereon a remitter was filed by Cosper in the sum of $3,360, whereupon the motion for new trial was overruled and the case was appealed by Hagan, Fink and Standard Accident Insurance Company, the surety on the replevin bond.

There are some sixteen assignments of error, which appellants sum up under two headings: First, an alleged failure of the trial court to determine the ownership of the replevied cattle in accordance with the proved and admitted facts; and, second, a failure to render judgment in accordance with such determination. We are, of course, bound by all the findings of fact of the trial court necessary to support the judgment, whether such findings be direct or implied, if there be any evidence in the record sufficient to sustain them. First Baptist Church v. Connor, 30 Ariz. 234, 245 P. 932; Welker & Clifford v. Merrill, 32 Ariz. 90, 255 P. 991. There is but little dispute in the evidence, and we are satisfied all the direct findings of the trial court are sustained thereby, and that in addition thereto there are certain other findings necessarily implied from such evidence and the judgment, but not specifically mentioned by the court. The facts of the case, based on these findings, express and implied, are as follows:

More than forty years ago one J. H. T. Cosper, commonly called Toles Cosper, began to run cattle on the Blue River Range in Greenlee county, Arizona. The first brand he used consisted of a quarter circle under the eye, commonly called a "U." About 1888, for some reason he began using a brand consisting of two capital letters Y, on the left side, separated by a bar, continuing such use until about the year 1916. At that time another party began to use a brand in the same locality described as XXX, and Cosper, in order to prevent any possible conflict with the last-named brand, directed his employees in the future to brand all new cattle with the U under the eye in addition to the Y -- Y on the side. In 1919 the Live Stock Sanitary Board required that all brands in use be re-recorded, and Cosper made application to the board for a brand consisting of a quarter circle, or U, under the eye and a Y -- Y on the side, which brand was duly recorded. From that time on the entire natural increase of the Cosper herd, no matter what the brand of the mothers, was branded U Y -- Y, and the further use of the Y -- Y brand was discontinued, except that the cattle already in that brand were not rebranded.

About 1916 defendants George and Mussett Cosper, being nephews of Toles Cosper, drove certain cattle of theirs from a range in New Mexico to the range of Toles Cosper, and a few years thereafter sold all of said cattle to the latter, there being between seven and eight hundred head, and took his note therefor. In 1920 Toles Cosper became financially embarrassed, and on the seventh day of March, 1921, gave a chattel mortgage covering 225 head of cows described as branded Y -- Y to one Grace Morrison. On June 6th of the same year he gave a chattel mortgage covering 350 head of heifers and cows, also described as branded Y -- Y, to Phelps Dodge Mercantile Company, and on August 10th a mortgage covering 300 cows branded Y -- Y and their increase to Julia Pitt. These mortgages secured loans for about $8,000.

On November 25th, 1922, W. F. Hagan, the predecessor in interest of plaintiff, brought suit against Toles Cosper, and by range levy attached all horned, female cattle branded Y -- Y, and all bulls in the same brand. This suit ripened into a judgment, and a range sale was made of all the attached property in June, 1923, to W. F. Hagan, who went into possession of the entire Cosper herd, maintaining and operating them without segregation as his own till August, 1924. On January 4th, 1924, George Cosper, defendant herein, sued Toles Cosper on the note above referred to, and attached by range levy all horned cattle branded U Y -- Y, which suit ripened into judgment and a range sale of the attached cattle in August, 1925, to George Cosper. On January 25th, 1924, W. F. Hagan sued Toles Cosper, attaching by range levy all Y -- Y and also U Y -- Y cattle, together with the U Y -- Y brand, which suit ripened into judgment and a range sale to W. F. Hagan of the said attached cattle and brand.

In August, 1924, an action was brought by Julia Pitt to foreclose the mortgage mentioned above, and the Hagans, the Cospers, and the holders of the other mortgages were all made parties thereto. At this time the Arizona Copper Company, Phelps Dodge Mercantile Company and George H. Cosper were the owners of the other mortgages. The defendants answered and the other mortgagees cross-complained, asking for foreclosure of their mortgages. Judgment was rendered foreclosing all the mortgages, and the title given by the foreclosure sale, whatever it may prove to be ultimately, passed to George H. Cosper. The trial court in that suit expressly found that at the time of the foreclosure there were only about five hundred head of cows branded Y -- Y in existence, but made no finding as to when such brand was placed on any particular cattle. By its terms the rights of the purchasers were confined to female cattle branded Y -- Y, and existing at the time of the execution of said mortgages, together with the increase on the cattle covered by the Pitt mortgage, and the judgment and order of sale specifically excluded therefrom all cattle branded U Y -- Y.

When the suit to foreclose the Pitt mortgage was started, a receiver was appointed to take possession of the cattle, and during his receivership he sold some six hundred head from the herd, selecting them indiscriminately, regardless of their brand. The receiver was discharged in February, 1925, and by agreement Everet Hagan, acting for W. F. Hagan, and George Cosper took joint possession of the cattle for some four months, when the latter took exclusive possession of the entire herd, representing the mortgagees as to the Y -- Y cattle, and himself as to the U Y -- Y cattle, and continued in possession and control of the herd until this replevin suit was commenced, making no segregation thereof. In the meantime he moved them to another range, and J. A. Hagan became the owner of all of W. F. Hagan's interest therein.

There are some other facts found by the trial court, or implied by the judgment, which are not needed for a general understanding of the situation, but if necessary we will refer to them from time to time as occasion requires.

The first question for us to determine is whether the U Y -- Y and the Y -- Y brands are the same in the eyes of the law. Counsel for Hagan argued most strenuously in the course of the hearing that the brands were legally one and the same, and were so understood and considered by all the parties hereto. We are of the opinion, however, that on the findings of the court and the evidence, this position is unsound. According to the testimony of Toles Cosper, he used the legally recorded Y -- Y brand for his entire herd of cattle up to a certain time, and then added the U because the Y -- Y brand might conflict with one being used by other parties. In 1919 he recorded the U Y -- Y brand and failed to re-record the Y -- Y, ceasing its use. A brand is identified as a whole, and not by the separate characters therein. There are hundreds of brands in this state which agree in one or perhaps two characters, but no one would contend for a moment that this partial similarity made them the same brands legally. In the eyes of the law a U Y -- Y brand could no more be the same as Y -- Y than a brand ABC could be the same as a brand A B X.

The confusion has evidently grown out of the fact that the owner of the cattle branded in both brands happened to be the same person, and that he ran all the cattle indiscriminately on the same range. This, however, does not in any manner affect the separate legal identity of the brands and their effect on the title of the cattle which bore them. Much is made by counsel for plaintiff of the finding of the trial court that all the Toles Cosper cattle, regardless of their brands, were commonly spoken of as the Y -- Y herd. This is obviously due to the fact that it is the custom among cattlemen in referring to the cattle owned by a certain person to call them by the name of the brand in which most of the cattle are, rather than by the name of...