Helgert v. Stewart

• Citation: 20 Colo.App. 202,77 P. 1091
• Parties: HELGERT v. STEWART.
• Decision Date: 12 September 1904
• Court: Colorado Court of Appeals

77 P. 1091

20 Colo.App. 202

HELGERT v. STEWART.

Court of Appeals of Colorado

September 12, 1904

Appeal from Teller County Court.

Replevin by Nels Helgert against James T. Stewart. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Scott Ashton, for appellant.

J. Grattan O'Bryan, for appellee.

GUNTER, J.

Replevin by vendee, appellant, to recover from the sheriff personal property held under execution against vendor. Judgment of nonsuit. Therefrom this appeal.

There was evidence tending to show a sale in April to appellant of the personal property involved. At the time of the sale, this property, used in the operation of a butcher shop, and capable of manual delivery, was in actual possession of the vendor. The following June it was levied upon under a writ of execution issued upon a judgment against the vendor. It was essential to the case in replevin by vendee, appellant, who took title through such sale, to show it valid against the execution creditor of the vendor. Requisite to the validity of the sale was a delivery, followed by an actual and continued change of possession of the property sold. Mills' Ann.St. § 2027. "Nor can a case be taken out of the statute, nor can the statute be satisfied, by proving that the sale was bona fide and no fraud intended. Unless the purchaser can show such a substantial compliance with its terms as affords visible notice to the community of a change in the ownership of the goods, the transaction constitutes a fraud in law, and as such must be held to be void as to creditors and subsequent purchasers in good faith of the vendor." Bassinger v. Spangler, 9 Colo. 175, 179, 10 P. 809, 812. No facts were shown evidencing the required change of possession. If we assume there was evidence tending to show that the judgment creditor knew of the alleged sale to appellant when the execution was levied, it would not affect the question before us. "Whether the creditor has knowledge of such sale or not is of no consequence." Bassinger v. Spangler, 9 Colo. 186, 10 P. 816.

Appellant, having shown no title to the property involved as against appellee, the sheriff, was properly nonsuited.

Judgment affirmed. Affirmed.