Hall v. Johnson

• Decision Date: 30 September 1895
• Parties: HALL, Sheriff, v. JOHNSON.
• Court: Colorado Supreme Court

42 P. 660

21 Colo. 414

HALL, Sheriff, v. JOHNSON.

Supreme Court of Colorado

September 30, 1895

Appeal from district court, Park county.

Action of replevin by William E. Johnson against Lent Hall, sheriff of Park county. Judgment was rendered for plaintiff, and defendant appeals. Reversed.

This is an action for the recovery of the possession of specific personal property. The complaint bases the plaintiff's right of possession upon the existence of certain facts which are, with particularity, set out in the complaint, and which are claimed to constitute ownership in the plaintiff. The first defense of the answer is a general denial, and the second defense is a justification under an attachment writ. The case was tried to the court without a jury, partly upon an agreed statement of facts, and partly upon evidence introduced by both parties, from which and the pleadings it appears that the South Park Land & Cattle Company, a corporation, for the purpose of carrying on its operations executed and negotiated a certain number of its bonds payable in 10 years, with interest payable semiannually, to secure which it executed its certain instrument of writing called a 'trust deed,' to one Harding, as trustee embracing both real and personal property, which instrument was recorded in the county where the principal office of the company was kept. George Westlake became the bona fide holder and owner of 13 of these bonds. The company defaulted in the payment of interest thereon, and, in accordance with the provisions of the trust deed giving authority therefor, the trustee, upon the application of Westlake, proceeded to take possession of the personal property covered by the mortgage, and to advertise and sell the same in accordance with the provisions of the trust deed. While the trustee was in such possession, taken under the trust deed, and before the foreclosure sale, one Gumaer brought his action against the cattle company upon an indebtedness alleged to be due from it to him, and sued out a writ of attachment in aid thereof, which writ the sheriff, Hall, who is the appellant here, levied upon the said personal property, and took the same into his possession. The trustee thereupon brought this action of replevin against the sheriff, and during the pendency of this action, and before final judgment, the trustee sold the property under the foreclosure of the trust deed to William E. Johnson, who thereupon was substituted as the plaintiff in this action, in place of Harding, trustee. The provisions of the trust deed with reference to the personal property are as follows: 'And also the entire herd of stock cattle and horses belonging to the said party of the first part, and consisting of about seven thousand (7,000) head, branded with the 1 H on the left hip or side, now ranging in said Park, Chaffee, and Fremont counties, Colorado; the said party of the first part, however, reserving the right to sell or dispose of, from said herd, from time to time, all beef and unproductive cattle and horses, but in no event to decrease the herd, by any such sale or disposal, to a less number than seven thousand: provided, always, that, until default shall be made in the payment of the principal or interest aforesaid, the party of the first part may remain in the possession of said premises and property, and the proceeds thereof.' Section 169 of the chattel mortgage act of 1883 (Gen. St. Colo. p. 160) is as follows: 'The provisions of this act shall be deemed to extend to all such bills of sale, deeds of trust, and other conveyances of personal property, as shall have the effect of...