Jones v. McQueen

• Decision Date: 27 March 1896
• Docket Number: 617
• Citation: 13 Utah 178,45 P. 202
• Court: Utah Supreme Court
• Parties: M. J. JONES, RESPONDENT, v. WILLIAM McQUEEN, APPELLANT

45 P. 202

13 Utah 178

M. J. JONES, RESPONDENT, v. WILLIAM McQUEEN, APPELLANT

No. 617

Supreme Court of Utah

March 27, 1896

Appeal from the district court of the Third judicial district Territory of Utah. Hon. S. A. Merritt, Judge.

Action of replevin brought by plaintiff against defendant, as sheriff, for the possession of property or for damages. From a judgment in favor of the plaintiff, defendant appeals.

Affirmed.

Jones &amp Schroeder, for appellant.

Proof of fraud in plaintiff's title would certainly tend to destroy his right of possession as against one claiming under a writ of attachment against his grantor. Any proof tending to do that is admissible in evidence, under a denial of plaintiff's right of possession. Schulenburg v Harriman, 88 U.S. 44; Book 22, Co-Op. Ed. 554.

"Proof that the defendant was at the commencement of the action entitled to the possession of the goods, was also proof that the plaintiff was not. Proof that the defendant legally and rightfully held the goods in his possession, also established that he did not unlawfully detain them from the plaintiff. Proof that the attachment plaintiff was a creditor of the * * * assignor, * * * and that as against himself the plaintiff obtained no valid title to the goods by reason of fraud in the sale was directly responsive to the issue." Bailey v. Swain, 16 N.E. 370; 45 Ohio St. 657; Merrill v. Wedgwood, 41 N.W. 150; 25 Neb. 283; Swope v. Paul, 31 N.E. 42 (Ind.).

2. Plaintiff alleges that he has been damaged by reason of the defendant's taking of the goods in question.

Defendant denies this allegation. If plaintiff obtained title to the property through fraud and without consideration, proof of that fact would certainly tend to mitigate the damages claimed, and is therefore admissible in evidence. Graham v. Warner's Ex'rs, 28 Am. Dec. 65- 67-68; 3 Dana (Ky.) 146.

3. Plaintiff alleges and the defendant denies the former's ownership of the property. Proof of fraud in plaintiff's title is proper rebuttal of plaintiff's evidence of ownership, especially where the defendant claims under a writ of attachment against plaintiff's fraudulent grantor. Proof of fraud is therefore admissible under the denial of plaintiff's ownership. Eureka, etc. v. Bresnahan, 33 N.W. 834, 66 Mich. 489; Merrill v. Wedgwood, 41 N.W. 150, 25 Neb. 283; Sparrow v. Rhoades, 18 P. 245, 76 Cal. 208; Mathews v. Hutchinson, 25 Wis. 36.

4. Plaintiff alleges and the defendant denies that the latter wrongfully took the property in controversy from the former.

Proof of fraud in plaintiff's title, when coupled with the defendant's claim to the right of possession under a writ of attachment against the original owner, certainly tends to prove that the defendant's taking was not wrongful, and is therefore admissible in evidence under a denial of the wrongful taking. Graham v. Warner's Ex'rs, 28 Am. Dec. 65-67-68, 3 Dana 146.

Rawlins & Critchlow, for respondent.

COUNSEL FOR THE DEFENDANT COMPLAIN:

That the court below sustained objections to certain questions propounded by them and excluded evidence which they insist tended to prove fraud in the assignment for the benefit of creditors. This ruling by the court was right, 1st, for the reason, that no such issue was raised by any of the answers filed by the defendant; and, 2d, for the reason that the evidence offered did not connect the assignee or the creditors with the fraud complained of.

The first answer of the defendant, filed June 26, 1893, denied that the plaintiff was the owner of the property in question and further denied that the defendant wrongfully took possession of the same from the plaintiff. The latter denial was merely of a legal conclusion and therefore the answer admitted that the defendant took the property from the possession of the plaintiff. No justification of any kind for this taking was set up in this answer.

The next answer of the defendant, filed June 28, 1893, contained no denials, but simply alleged that the defendant was the sheriff; that in an action between the National Wall Paper Company and the Utah Paint and Oil Company an attachment was issued under which the defendant took possession of the property in question and that at the time of the taking the property belonged to the Utah Paint and Oil Company and not to the plaintiff. This latter answer purports to be an original answer and would therefore operate as a waiver of the former answer. It will be perceived that under this answer defendant admitted that he took the possession of the property from the plaintiff, that it is not alleged that the plaintiff in the attachment suit was a creditor of the defendant in that suit, the assignor of plaintiff, or, that any affidavit or bond was filed so as to warrant the issuing of an attachment.

The rule is well established that where an officer takes the property from the possession of a third person, not the debtor in the attachment suit, he must be prepared to justify the proceeding affirmatively by allegation and proof. The burden is upon him and he is presumed to have knowledge of the grounds upon which he assails that possession. Snell v. Crow, 3 Utah 28; Thornburg v. Hand, 7 Cal. 554; Horn v. Corvarubias, 51 Cal. 524; Brichman v. Ross, 67 Cal. 601-604; Dawson v. Briant, 3 Pick. 411; Miller v. Banister, 109 Mass. 289; Rinchy v. Striker, 28 N.Y. 45-52; Drake on Attachment, sec. 185a.

This author states the rule as follows: "When the officer attaches property found in the possession of the defendant, he can always justify the levy by the production of the attachment writ, if the same was issued by a court or officer having lawful authority to issue it, and be in legal form. But when the property is found in the possession of a stranger claiming title, the mere production of the writ will not justify its seizure thereunder; it rests upon the officer to go further and prove that the attachment defendant was indebted to the attachment plaintiff. If in the attachment suit judgment was rendered in favor of the plaintiff, that will establish the indebtedness of the defendant; if not, the officer must otherwise prove the indebtedness in order to justify his proceeding."

Counsel for defendant cite authorities to the effect that in replevin where the title of the plaintiff is put in issue, evidence is admissible to show title in a third person. But this question is not involved in this case. By the evidence which counsel offered it was sought to avoid a transfer of property which could only be assailed for fraud by a creditor of the assignor. As to all persons except a creditor it was conceded that plaintiff held the title. To avoid the transfer of title otherwise good for fraud is not the same, in the sense of the authorities cited upon the other side, as showing title in a third person.

An assignment for the benefit of creditors cannot be avoided for fraud with which the assignee and the creditors are in anywise connected. To lay the foundation for the admission of evidence of the fraud it must be specially set forth in the answer. Seelman v. Hoagland, 34 P. 995; Albertoh v. Branham, 22 P. 404; Gleason v. Wilson, 29 P. 698; Pettit v. Parsons, 9 Utah 223.

If fraud has been committed by the assignor to the detriment of creditors, the assignee for their benefit, could sue and obtain the necessary relief. Emerson v. Center, 118 U.S.; Estes v. Gunter, 122 U.S. 454; Peters v. Bain, 133 U.S. 690; Huntly v. Kingham, 152 U.S. 527.

The cases cited by counsel from California and elsewhere which might seem to lay down a different rule in regard to pleading will be found, almost without exception, to have been cases in which the officer took the property from the possession of the defendant in the attachment suit.

BARTCH, J. ZANE, C. J., and MINER, J., concur.

OPINION

BARTCH, J.:

The defendant in this case, as sheriff of Salt Lake county, under a writ of attachment, levied upon, seized, and afterwards under execution, sold certain personal property. The plaintiff, claiming to be the owner thereof, and that he was wrongfully deprived of its possession, brought this suit in replevin to recover its possession,--or the value thereof. The jury found that he was the owner and entitled to the possession, and the value of the property, with accrued interest, to be $ 3,252.72. After judgment was entered in accordance with the verdict, and a motion for a new trial overruled, the defendant prosecuted his appeal to this court. The main question to be determined is whether, under the pleadings, as shown by the record, the court erred in its ruling on the admission of evidence relating to the subject of fraud. It appears that the property in question originally belonged to the Utah Paint & Oil Company, and that it was by that company transferred and delivered to the plaintiff, by deed of assignment for the benefit of its creditors, and was so in his possession, by virtue of said deed, at the time of the levy and seizure by the defendant. It further appears from the record that the writ of attachment in question was issued in a case in which the National Wall Paper Company was plaintiff, and the Utah Paint & Oil Company defendant, to recover a certain sum alleged to be due the National Wall Paper Company, and that the assignee of the defendant company, the plaintiff in the case at bar, was not a party to that suit. Under these circumstances the defendant, at the trial of this cause, offered evidence tending to show that at the time of making the assignment in question the Utah Paint & Oil Company had disposed of the property, to one Martha Ann Coombs, by chattel mortgage, and therefore had no interest therein; that the said mortgage was fraudulent and void as to creditors; and that the assignment was fraudulent, and made to...