Longley v. Daly
| Decision Date | 08 July 1890 |
| Citation | 46 N.W. 247,1 S.D. 257 |
| Parties | Longley v. Daly. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. The court may at any time direct a verdict when the facts are undisputed, and the jury should follow such direction. The intervention of the jury is required only when some question of fact is controverted.
2. In the transfer of personal property, the vendor must deliver to the vendee possession in order to consummate the sale, and render it valid as against creditors. The delivery must be actual, such as the nature of the property and the circumstances of the sale will reasonably admit, and such as the vendor is capable of making.
3. There must be not only delivery, but a continuing possession and it must be accompanied with such unmistakable acts of control and ownership as a prudent, bona fide purchaser would do in the exercise of his rights over property, so that all persons may have notice that he owns and has possession of it.
4. Exemptions are of three classes,--absolute, additional, and special alternative. Absolute exemptions are at all times and under all circumstances, not subject to lien of judgment or levy and sale under execution, except for purchase money. Additional exemption is a personal privilege, and must be claimed by the party entitled to it, or it will be deemed to be waived. If it is not claimed before sale, the execution is lost.
5. Applications for a new trial, on the ground of newly-discovered evidence, are addressed to the discretion of the court, and its action will not be disturbed except for abuse of discretion; the presumption being that it was properly exercised.
Appeal from district court, Miner county.
D. D Holdridge, for appellant. Farmer & Farmer, (A. B. Mellville, of counsel,) for respondent.
On the 13th day of September, 1887, an execution was duly issued out of the office of the clerk of the district court of Miner county, D. T., upon a judgment previously obtained in the suit of C. W. and H. W. Zickrick, under the firm name of Zickrick Bros., v. J. W. Hill. September 27, 1887, due levy under said execution was made upon an undivided one-half of 10 certain wheat stacks, then standing upon the south-west quarter of section 21, township 106 N., range 55 W., fifth P. M., as the property of said J. W.
Hill. On the 30th day of September, 1887, or within three days from the date of said levy, said J. W. Hill made and served a notice claiming exemptions, together with a schedule of all his property, as provided by law. This schedule does not include the 10 stacks of wheat as above described, nor any interest in them. On the 30th day of September, A. D. 1887, James Mahoney, deputy-sheriff, having said execution and schedule in his hands, released his former levy upon said wheat, but immediately relevied upon an undivided one-half of all the grain upon the S.W. 1/4, section 21, township 106, range 55, consisting of 18 stacks, as the property of said J. W. Hill, and took possession of them under the levy. On the 1st day of October, 1887, said J. W. Hill made and filed in the office of the register of deeds for Miner county a bill of sale of the same wheat to James I. Longley, plaintiff and appellant. On the 17th day of October, 1887, he (James I. Longley) brought this action in claim and delivery against the sheriff to recover the possession of the grain. The action was tried before a jury, and the following verdict rendered by direction of the court: Upon this verdict a judgment was taken of money damages for the sum of $217.26. A motion for a new trial was made after judgment, which was overruled. An appeal was taken, and the following assignment of errors made: (1) Error in refusing to submit to the jury the question of fact in the case; (2) error in directing the jury to find a verdict for the defendant; (3) error in the statement of the court to the jury in directing a verdict; (4) that the court erred in overruling plaintiff's motion for a new trial; (5) error in this: the verdict is entirely unsupported by the evidence; (6) the judgment is erroneous and against law; (7) the judgment is erroneous in that the evidence shows that the property had been delivered to the plaintiff by the sheriff, and the defendant claimed a return thereof in his answer, or, if a return thereof could not be had for the value of said property,--the judgment is for the value of the property only; (8) the judgment is erroneous, in that it does not conform to section 5099 of the Compiled Laws of Dakota.
The first three will be considered together. At the close of the testimony of both plaintiff and defendant, the court, upon its own motion, directed the jury to find for the defendant, but allowed them to retire, and find the value of the property in controversy. Was this error? There can be no serious doubt that the court may at any time direct a verdict when the facts are undisputed, and that the jury should follow such direction. The maxim that questions of fact are to be submitted to the jury, and not to be determined by the court, is not violated by this proceeding. The intervention of the jury is required only when some question of fact is controverted. In Merchants' Bank v. State Bank, 10 Wall. 604, Mr. Justice SWAYNE says: See, also, Pleasants v. Fant, 22 Wall. 116; Railroad Co. v. Fraloff, 100 U.S. 24. Where the question, after defendant's case is closed, is, in like manner, entirely one of law, the judge may direct a verdict for either, as the rights of the parties may demand. In the case before us, is it clear that the plaintiff was not entitled to recover? The theory of his contention was based upon the establishment by evidence of the following proposition: That he was the owner, by bona fide sale and purchase, of the undivided one-half of all the grain upon the S.W. 1/4, section 21, township 106, range 55, consisting of 18 stacks of wheat. The record discloses the fact that on the 30th day of September, 1887, one J. W. Hill was the owner of the grain in controversy, and that on that day the defendant, as the sheriff of Miner county, by one of his deputies, having an execution against the property of said Hill, made a levy upon it, and seized and took it into his possession. On the 1st day of October, 1887, the plaintiff, J. I. Longley, claimed to have purchased it from J. W. Hill, the execution debtor, and received from him a bill of sale, which was put on record. The plaintiff did not take possession of it, or attempt to, at the time of purchase, but claims to have paid the purchase price to Hill at the time. On the 3d or 4th day of October was the first time he saw the grain. At the time of the purchase he did not know of the execution against Hill, or the levy upon the property. These facts are uncontroverted, and are relied upon to sustain the plaintiff's case.
Was this a valid sale against judgment creditors of the vendor? Section 4657, Comp. Laws, is as follows: "Every transfer of personal property, other than a thing in action, *** is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors, while he remains in possession." The vendor, under this statute, must deliver to the vendee possession in order to consummate the sale, and render it valid as against creditors. The delivery must be actual, such as the nature of the property and the circumstances of the sale will reasonably admit, and such as the vendor is capable of making. There must be not only a delivery, but a continuing possession, and it must be accompanied with such unmistakable acts of control and ownership as a prudent, bona fide purchaser would do in the exercise of his rights over property, so that all persons may have notice that he owns and has possession of it. Change of possession is mainly a fact, like possession; but, of course, the facts being conceded or found, all these matters resolve themselves into a question of law, and as such are to be decided by the court. The evidence before us shows that no change of possession took place. No delivery was offered or tendered, nor an attempt to get possession of the property made, until after it was levied upon by the sheriff at the instance of a judgment creditor of the vendor. The sale, while valid as...
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