Jameson v. Diggs

• Decision Date: 17 April 1929
• Docket Number: 5050
• Citation: 276 P. 969,47 Idaho 478
• Parties: E. A. JAMESON, Respondent, v. FRED L. DIGGS, Sheriff of Valley County, Idaho, Appellant
• Court: Idaho Supreme Court

276 P. 969

47 Idaho 478

E. A. JAMESON, Respondent, v. FRED L. DIGGS, Sheriff of Valley County, Idaho, Appellant

No. 5050

Supreme Court of Idaho

April 17, 1929

BILL OF SALE-ABSOLUTE CONVEYANCE-FRAUDULENT CONVEYANCES-WHEN NOT ATTACKED FOR FRAUD-FINDINGS.

1. Stipulation that the only issue involved and the question to be decided by the court is whether bill of sale conveyed title absolutely or constituted a mortgage held to authorize entry judgment for the one party or the other as such fact issue was decided.

2. An absolute conveyance is prima facie the effect of a bill of sale.

3. A bill of sale being given in full satisfaction of a debt, it cannot be considered security for the debt, the debt having been extinguished.

4. Bill of sale, not having been attacked as a conveyance in fraud of creditors, must be considered as a conveyance of absolute title, notwithstanding evidence that would have supported a finding that it was a conveyance in fraud of creditors, were that in issue.

5. There being submitted to the court only the single question whether bill of sale conveyed title absolutely or constituted a mortgage, and evidence being submitted on that sole issue and no more specific finding being requested, it is a fair inference from the finding made, that the bill of sale was an absolute conveyance and conveyed absolute title, to construe it as a finding of fact on the intent of the parties, and not as a conclusion of law.

APPEAL from the District Court of the Seventh Judicial District, for Valley County. Hon. B. S. Varian, Judge.

Action for damages for alleged wrongful levy of execution. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs to the respondent.

F. M Kerby, Wm. M. Morgan and E. B. Smith, for Appellant.

Although an instrument is in form a bill of sale, if it is given to secure the payment of money, it is in fact a mortgage. (Keane v. Kibble, 28 Idaho 274, 154 P. 972; Smith v. Pfluger, 126 Wis. 253, 110 Am. St. 911, 105 N.W. 476, 2 L. R. A., N. S., 783; State v. Bacha, 44 Nev. 373, 194 P. 1066; Cary & Co. v. Hyer, 91 Fla. 322, 107 So. 684; Keystone Finance Corp. v. Krueger, 17 F.2d 904; Bank of Mobile v. Lewis, 16 Ala. App. 605, 80 So. 179; Moore v. Foster, 97 Ill.App. 233; Boli v. Irwin, 21 Ky. Law, 366, 51 S.W. 444; Clark v. Williams, 190 Mass. 219, 76 N.E. 723.)

Rex Kimmell, Oppenheim & Lampert, and E. O. Smith, for Respondent.

A written recorded deed or bill of sale is presumed to be an absolute conveyance of the property therein described unless it be established by the party seeking to change its character by clear, concise and unequivocal evidence that the mutual intention of the grantor and grantee was otherwise. (Mackey v. Stafford, 43 Wis. 653; Bergen v. Johnson, 21 Idaho 619, 123 P. 484; Coyle v. Davis, 116 U.S. 108, 6 S.Ct. 314, 29 L.Ed. 583; Cadman v. Peter, 118 U.S. 73, 6 S.Ct. 957, 30 L.Ed. 78; Hammer v. O'Loughlin, 8 Wash. 393, 36 P. 257; Cake v. Schull, 45 N.J. Eq. 208, 13 A. 666; Voorhies v. Hennessy, 7 Wash. 243, 34 P. 931; Purington v. Akhurst, 74 Ill. 490; Sewell v. Price, 32 Ala. 97; Perot v. Cooper, 17 Colo. 80, 31 Am. St. 258, 28 P. 391; Peters Saddlery & Harness Co. v. Schoelkopf, 71 Tex. 418, 9 S.W. 336; Ruffier v. Womack, 30 Tex. 332, 340.)

BRINCK, District Judge. Givens and Wm. E. Lee, JJ., concur. Budge, C. J., and T. Bailey Lee, J., did not sit at the hearing, and took no part in the decision.

OPINION

BRINCK, District Judge.

Plaintiff, E. A. Jameson, in his complaint alleged the wrongful taking by defendant as sheriff of $ 300 alleged to be the property of plaintiff, and which the defendant had taken under execution issued against the property of one W. J. Jameson. The answer alleged the existence of a judgment against W. J. Jameson in behalf of one Kinnard; that W. J. Jameson had made a bill of sale for certain timothy seed to one Patterson as security for certain indebtedness owing Patterson, and that said seed had been sold by Patterson with the consent of W. J. Jameson; that the $ 300 in question was the balance of the proceeds of such sale over and above the amount due Patterson, and that it had been attached by the defendant under said judgment by garnishment of Lewis and Halferty, the purchasers of the seed. Various other allegations were contained in the answer attacking the good faith of the parties in certain transfers between W. J. Jameson and plaintiff, and attacking an alleged assignment by W. J. Jameson to plaintiff of the fund here involved.

When the case came on for trial, instead of submitting to the court the issues made by the pleadings, the parties entered into a stipulation that the only issue involved and the question to be decided by the court in this case is, Did the bill of sale from W. J. Jameson to Patterson "convey the title to the timothy seed described therein to said E. H Patterson absolutely, or did said instrument constitute a mortgage upon said timothy seed"? If this stipulation is to be given...