In re McCartney

• Decision Date: 12 August 1914
• Citation: 218 F. 717
• Parties: In re McCARTNEY.
• Court: U.S. District Court — District of Idaho

218 F. 717

In re McCARTNEY.

United States District Court, D. Idaho, Northern Division.

August 12, 1914

J. B Hogan, of Coeur d'Alene, Idaho, for petitioner.

Robt. D. Leeper, of Coeur d'Alene, Idaho, for trustee.

Jas. H Frazier, of Coeur d'Alene, Idaho, for H. H. Hubbard creditor.

DIETRICH District Judge.

Inasmuch as all parties in interest stand upon the findings of fact made by the referee, it is deemed to be unnecessary to restate the facts in detail. The logs in question were cut from trees growing upon the homestead entry of the bankrupt under an oral agreement by which the petitioner, George H. McCartney, a brother of the bankrupt, was to have the logs in consideration of his clearing the land. That such an agreement was made is not questioned. It is also conceded that it was made in good faith, and that at great expense the petitioner cut the timber, cleared part of the land, and purchased a sawmill for the purpose of manufacturing the logs into lumber. Obviously it would be highly inequitable now to deprive him of the fruits of his labor and expense.

The referee was of the opinion that there was not such an immediate delivery of the logs to the petitioner and such an actual and continuous change of possession thereof as to comply with the provisions of section 3170 of the Revised Codes of Idaho, declaring all transfers of personal property to be void if made by persons having at the time the possession and control thereof, and if not accompanied by immediate delivery and followed by actual and continued change of possession. It has, however, been generally held that such statutes must be given a practical construction and only such acts are required upon the part of the vendor as under the circumstances are reasonable. Here, when the agreement was entered into, the timber was standing upon the ground. It was a part of the real property. In so far as was practicable, the petitioner took possession thereof. He and his employes set to work to fell the trees and to cut them into logs. By reason of the inaccessibility of existing sawmills, it was impracticable to market the logs; it was necessary to purchase a mill and place the same upon the land. This was done. From the moment the logs became personal property the petitioner exercised exclusive dominion thereover, and had exclusive possession, excepting only that the logs remained upon the homestead of the bankrupt. But it was...