Heisch v. Bell *

• Decision Date: 28 August 1902
• Parties: HEISCHv.BELL et al.*
• Court: New Mexico Supreme Court

11 N.M. 523

70 P. 572

HEISCH

v.BELL et al.*

Supreme Court of the Territory of New Mexico.

Aug. 28, 1902.

Syllabus by the Court.

1. A bill of sale given by a debtor to a creditor upon personal property, of which there is a change of possession, is valid, between the parties, whether the same is acknowledged and recorded or not.

2. In such case, if the property covered by the bill of sale is the exempt property of the debtor, such bill of sale is valid as against third parties, also.

3. Such sale is not in fraud of creditors, as a debtor may dispose of his exempt property at will.

4. Where appellant insists in the court below that a bill of sale is a mortgage, and damages are assessed by the court upon that basis, appellant will not be heard to complain of the measure of damages correctly assessed according to appellant's contention.

5. Where the undisputed facts show that the defendants cannot recover, and the court would be compelled to set aside a verdict in favor of the defendants, it is not error for the court to direct a verdict for plaintiff.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by Charles Heisch against J. L. Bell & Co. and another. Judgment for plaintiff, and defendants appeal. Affirmed.

One Harry Cooper was justly indebted to both the plaintiff and defendants Bell & Co. in the spring of 1901. Cooper executed a bill of sale to the plaintiff April 30, 1901, of the personal property involved in this suit, but the plaintiff did not remove the property from the room in which it was when Cooper gave the bill of sale. The bill of sale was filed for record, and was recorded May 1, 1901. Some time after this bill of sale was given to the plaintiff, the defendants Bell & Co. brought an attachment suit against Cooper, and defendant Smith, as a constable, attached and took possession of the property involved, as the property of Cooper, but the plaintiff was not made a party to the suit. Bell & Co. recovered against Cooper, and advertised the property for sale. Plaintiff, Heisch, made demand in writing upon defendants for immediate possession of the property attached, claiming the same under the bill of sale, but defendants refused to surrender the property. On the 19th day of July, 1901, and prior to the sale of the property, Cooper, in writing, claimed the property as exempt under the statute, the notice being in compliance with the law. Smith ignored the demand for possession by Heisch, and had no appraisement made as required by law where property seized is claimed to be exempt from sale. The plaintiff instituted this suit, which is in the nature of replevin, in which he claimed ownership and right of possession, and prayed for return of the property, or damages in the sum of $300, prior to the sale of the property by the defendants. The property was sold by Smith for the benefit of Bell & Co., Cooper becoming the purchaser through his agent, but the record does not show when the sale was made. The record states that at the close of the evidence the court, over the objection of the defendants' counsel, directed a verdict for the plaintiff, and the jury returned a verdict for the plaintiff, and assessed damages at $300 in the alternative. Judgment was rendered in accordance with the verdict, and the defendants appealed, and brought the case to this court.

Where the undisputed facts show that the defendants can not recover, and the court would be compelled to set aside a verdict in favor of the defendants, it is not error for the court to direct a verdict for plaintiff.

Fergusson & Gillett, for appellants.

B. F. Adams, for appellee.

McFIE, J. (after stating the facts).

The first issue for this court to determine is that relating to the validity of the bill of sale. Appellants contend that what purports to be a bill of sale was intended to be a mortgage. Upon this issue the plaintiff testified that the bill of sale was given as an absolute purchase; that he took immediate possession of the property, by placing one Pinckney, as his agent, in charge of it, and, although the property remained in the same room as before, he saw Cooper deliver the key to Pinckney; and that he arranged with the agent of the owner of the room to pay the rent. The plaintiff is corroborated by Pinckney and by Fisher, the agent of the owner of the building, and there is no evidence to the contrary. The contention of defendant's counsel that the possession of the property did not change from Cooper to the plaintiff cannot be sustained. Even if the possession did not change, it is only prima facie evidence of fraud, which may be rebutted by proof showing the bona files of the transaction, which was done in this case. Warner v. Norton, 20 How. 448, 15 L. Ed. 950; Crawford v. Neal, 144 U. S. 585, 12 Sup. Ct. 759, 36 L. Ed. 552. Cooper's claim that the property seized was exempt property has an important bearing in this case. Defendants attached the property as that of Cooper, the plaintiff not being made a party to the suit. Cooper gave the defendants notice in writing that he claimed the property as exempt, he being the head of a family; that he had no homestead; that the property seized did not exceed in value $300; and that he had no other property, except such as was specifically exempt, such as household goods and wearing apparel. Section 1753, Comp. Laws 1897, is as follows: “Any resident of this territory who is a head of a family, and not the owner of a homestead, may hold exempt from levy and sale real or personal property to be selected by such person, his agent or attorney, at any time before the sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.” This notice and claim seem to comply with the requirements of the statute, and it had the effect of making it the duty of the defendant Smith, the officer in charge, to ascertain the amount and value of the property by appraisement, as required by section 1745, Comp. Laws 1897, which provides: “In all cases where it is necessary to ascertain the amount or value of personal property exempt under this act, it shall be estimated and appraised by two disinterested householders of the county, to be selected by the officer holding the execution or attachment, and by him sworn to impartially make such appraisement.” So far as the record discloses, the defendants sold the property without any attempt to ascertain the amount and value of the property. The rights of Cooper as against the defendants cannot be adjudicated in this case, but this claim of exemption, taken in connection with his testimony to the truth of his claim and exemption, serves to remove any fraud in connection with the execution of the bill of sale. There being no proof, or offer to prove, that the property was not exempt, for the purposes of this case it...