Israel v. Day

• Decision Date: 07 October 1907
• Citation: 41 Colo. 52,92 P. 698
• Parties: ISRAEL, U.S. Marshal, v. DAY.
• Court: Colorado Supreme Court

92 P. 698

41 Colo. 52

ISRAEL, U.S. Marshal, v. DAY.

Supreme Court of Colorado

October 7, 1907

Rehearing Denied Dec. 2, 1907.

Appeal from District Court, Weld County; Christian A. Bennett Judge.

Action by William E. Day against Joseph A. Israel, United States marshal. From a judgment for plaintiff, defendant appeals. Reversed, with directions.

Wolcott, Vaile & Waterman, Caldwell Martin, and W N. Vaile, for appellant.

H. N Haynes, for appellee.

GABBERT J.

Appellant United States marshal for the state of Colorado, by virtue of an execution in his hands, levied upon certain personal property as the chattels of J. B. Hindry, the execution debtor. Appellee, claiming to be the owner of this property by purchase from the judgment debtor prior to the levy, brought suit in replevin against the marshal to recover possession thereof. The trial resulted in a verdict and judgment for the plaintiff, from which the defendant appeals.

Counsel for defendant assign errors upon instructions given and refused, and the admission of testimony. Counsel for plaintiff contend there was no error with respect to these matters. We do not deem it necessary to enter upon a discussion of the questions thus raised, because it appears that the material facts are established by testimony in which there is no conflict, and the case is therefore one where a verdict should have been directed for either the plaintiff or defendant, in accordance with the conclusions of law properly deducible from such facts. On behalf of defendant, it is urged that the evidence is not only insufficient to support the verdict, but that, under the testimony, a verdict for the defendant should have been directed, while on behalf of the plaintiff it is contended that the testimony is ample to support the verdict returned by the jury. The contention of counsel for defendant is based upon the assumption that the testimony wholly fails to establish that the sale upon which plaintiff relies was accompanied by an immediate delivery, and an actual and continued change of possession of the property in controversy, and therefore it is contended the sale from Hindry to plaintiff was void as against the judgment creditor of the former, by virtue of section 2027, 1 Mills' Ann. St., which provides, in substance, that every sale made by a vendor of chattels in his possession, unless accompanied by an immediate delivery, and followed by an actual, continued change of possession of the goods sold, shall be conclusively presumed to be fraudulent and void as against the creditors of the vendor. This statute has been before this court and the Court of Appeals in many cases in which it has been uniformly held that the vendee of chattels must take the actual possession thereof, and that such possession must be open, notorious, exclusive, and unequivocal, and such as to apprise the community that the goods sold have changed hands, and the title has passed from the vendor to the vendee. What constitutes a compliance or noncompliance with its provisions necessarily varies with the circumstances of each case involving a sale of chattels, where the foregoing statute is drawn in question, and it therefore becomes necessary to briefly review the testimony in order to determine whether or not the sale was void as against the creditor of Hindry for whose benefit the levy of the execution by the marshal was made.

It appears that Hindry owned a ranch adjacent to the one owned by the plaintiff, and that the chattels in question were located upon this ranch at the time plaintiff claims to have purchased them from Hindry. Hindry occupied this ranch, but was not there a great deal of the time. The property in controversy consisted of horses, cattle, hay, and farming implements. Plaintiff purchased it the latter part of January, 1897; Hindry telling plaintiff that he was going away, did not intend to do any more farming, that he never expected to come there again, and to take charge of and treat the ranch as his own. Subsequently, and on the evening of the day of sale, Hindry left, taking with him a number of horses wagon, scrapers, and other tools used in the business of grading; his occupation being that of a contractor on ditches and railroad grades. At that time G. C. Henry was in the employ of Hindry, caring for the property purchased, and had been for several years previous. The evening of the day of the sale plaintiff informed Henry that he had bought the stock in controversy, and would depend upon him to take care of it. The next morning plaintiff entered upon the ranch with about 100 head of his own cattle and horses, which had never been there before, leaving them there to pasture, in charge of Henry. This stock, as well as that purchased from Hindry, was fed by Henry from the hay purchased. Plaintiff visited the ranch daily, gave directions as to the care of the stock thereon, at different times took some of the horses purchased from Hindry over to his own ranch and worked them there, returning them later to the Hindry ranch, and at times one of his employés, a Mr. Craig, went to the ranch and assisted in looking after and caring...