Murphy v. Braase

• Decision Date: 25 January 1893
• Citation: 32 P. 208,3 Idaho 544
• Parties: MURPHY v. BRAASE, SHERIFF
• Court: Idaho Supreme Court

32 P. 208

3 Idaho 544

MURPHY v. BRAASE, SHERIFF

Supreme Court of Idaho

January 25, 1893

SALE AND DELIVERY OF PERSONAL PROPERTY TO SECURE LOAN.-M. loaned K. $1,500 in money, and took a bill of sale of some thirteen head of horses, and some other articles of personal property.

SAME-EVIDENCE OF SALE AND DELIVERY OF PROPERTY.-At the time the bill of sale was taken K. called Nelson Brothers, who then had possession of the property, and, in the presence of M., told Nelson Brothers that he had transferred the property to M for the purpose of securing the indebtedness above mentioned.

SAME.-He told Nelson Brothers to hold the property for M. The horses had just been gathered from the range, and were in the corral of Nelson Brothers, in the town where the transaction took place, to be taken to the winter range, and cared for during the winter by said Nelson Brothers. Nelson Brothers were also informed by K. that M. would pay for the wintering of the horses, and that they were to be turned over to him in the spring. Two horses that were included in the bill of sale were in the charge of one Lufkin. K. notified Lufkin that he had turned the horses over to M. and that he must deliver them to him.

DELIVERY OF PROPERTY TO VENDEE BY AGISTER-STATUTE OF FRAUD.-In the spring Nelson Brothers returned the horses from the winter range, and delivered them to Murphy, who hired a man to look after them on the range during the following summer. Held that there was such a delivery and continued change of possession as would relieve the property from the provisions of section 3021 of the Revised Statutes of Idaho.

CLAIM AND DELIVERY-ATTACHMENT-PROPERTY NOT SUBJECT TO LEVY.-The defendant, as sheriff, levied upon the property by virtue of attachment at the suit of one La Barge against K. in September of the year following the transfer of the property. Held, that the property was not subject to levy for the debts of K. A creditor desiring to contest the validity of a sale must prove a debt or judgment, if it has been reduced to a judgment, before he can be permitted to question the validity of the transfer of property as a pledge.

(Syllabus by the court.)

APPEAL from District Court, Alturas County.

This is a case of claim and delivery. The plaintiff alleges that he is entitled to the possession of certain property described in the complaint, as pledgee; that said goods and chattels consisting of horses, mares and colts, are of the value of $ 1,500; that the defendant wrongfully took the said goods and chattels from the possession of the plaintiff, without his consent; that the defendant still unlawfully and wrongfully withholds and detains said goods and chattels from plaintiff to his damage in a sum of $ 500--and demands judgment. The defendant, in answer, denies that plaintiff was entitled to possession of said goods as pledgee, or otherwise; 2. Denies that the property is of any greater value than $ 700, and admits that plaintiff demanded possession; 3. Denies that defendant, on or about September 11, 1890, or at any other time, wrongfully took said goods or chattels from the possession of the plaintiff; denies that he wrongfully withholds the same; denies the damage; and alleges that the property was, at the time stated in the complaint, the property of Patrick H. Kinney, and not the property of the plaintiff. On the third day of September, 1890, an action was duly commenced by one Felix La Barge against Patrick H. Kinney et al., in the district court of the second judicial district of Idaho, to recover the sum of $ 600 on an express contract for the direct payment of money. A summons was duly served on said Kinney, and writ of attachment issued in due form in said last-named action, at the time of the issuance of the summons therein, and placed in the hands of the defendant as sheriff. Defendant served a copy of the writ of attachment upon Kinney, and levied on the property described in the complaint, claiming that said property was the property of P. H. Kinney, and took it into his possession. Trial was had before the court and jury, and the jury returned the following verdict: "We, the jury, find for the plaintiff, and that the plaintiff is entitled to the possession of the property, and that the property is of the value of fifteen hundred dollars." Judgment followed the verdict. Motion for a new trial was made upon the statement of the case, and overruled by the court. From the order overruling the motion for new trial, an appeal was taken to this court.

Judgment affirmed. Costs awarded to respondent.

Texas Angel, for Appellant.

The plaintiff's testimony shows that there was no actual or continued change of possession of the property as required by section 3021 of the Revised Statutes; that such change of possession was not open, notorious or visible, or such as to give notice to the world that the party had ceased to exercise ownership and control, over the property, and that unless such a transfer was made it was void as against the creditors of the party making such transfer. (Stevens v. Irwin, 15 Cal. 506, 76 Am. Dec. 500; Engles v. Marshall, 19 Cal. 320; Cahoon v. Marshall, 25 Cal. 197; Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Dean v. Walkenhorst, 64 Cal. 78, 28 P. 60; Bell v. McClellan, 67 Cal. 273, 7 P. 699; Bunting v. Salz, 84 Cal. 168, 24 P. 167; Lawrence v. Burnham, 4 Nev. 361, 97 Am. Dec. 540; Harkness v. Smith, ante, p. 221, 28 P. 423; Mosgrove v. Harris, 94 Cal. 162, 29 P. 490.) A sale unaccompanied by immediate delivery is void as to attaching creditors, though delivery is made before levy. (Chenery v. Palmer, 6 Cal. 119, 65 Am. Dec. 493; Watson v. Rodgers, 53 Cal. 401.) The facts as to the transfer were undisputed, and they were for the court to pass upon and not the jury. (Hodgkins v. Hook, 23 Cal. 581.)

Selden B. Kingsbury, for Respondent.

To the objection that the transaction did not make the plaintiff the pledgee of the property, and that the bill of sale was in the nature of a chattel mortgage, and could not be used as evidence to establish a pledge, we reply, in the language of our statutes, that any writing by which the possession of personal property is turned over to secure the payment of a debt is evidence of a pledge. As to the question raised by the records, we cite Statutes of Idaho, sections 3410 to 3429, where we think both the statute and the common law on the subjects of pledges is set forth. We also quote: "But when the real character of the transaction is manifested by the language of the parties to the contract, disclosing their purpose and intention, all that the court has to do is to recognize its real and true character, and to carry into effect the parties' declared intention." (Wright v. Ross, 36 Cal. 429.) The delivery must be such as would be requisite to transfer the property in the same chattels in case of the sale of them; hence a symbolical delivery is sufficient wherever such delivery would be sufficient in the sale of the same property." (Davis v. Russell, 52 Cal. 611, 28 Am. Rep. 647; 2 Deering's Code, sec. 3440; notes to Williams v. Lerch, 56 Cal. 330; Idaho Laws, secs. 3020, 3021.) Sale is good between the parties whether possession is delivered or not. (Visher v. Webster, 13 Cal. 58; Ghirardelli v. McDermitt, 22 Cal. 539.)

MORGAN, J. Huston, C. J., concurs. Sullivan, J., did not take part in the hearing or the determination.

OPINION

MORGAN, J. (After Stating the Facts.)

The plaintiff, being introduced as a witness in his own behalf says that he loaned P. H. Kinney the sum of $ 1,500 in the fall of 1889; that Kinney turned over the horses in controversy to him, together with some other personal property, as security for said money; that, at the time of said loan, a portion of the horses were in the possession of Nelson Brothers, ready to be taken to the winter range, and a portion at the Lufkin ranch. At the time of said contract of loan, a written bill of sale of the horses, duly executed, was delivered to plaintiff by said Kinney. In January, 1891, another bill of sale was executed, covering the same, with some additional property. The bills of sale are identified and introduced in evidence. Plaintiff further states that when said loan was made, said Kinney promised and agreed that the property should remain in the possession of the plaintiff until said debt was paid, and so notified Nelson Brothers and Lufkin; that in the spring, when Nelson Brothers returned the horses from the winter range, they were turned over to him (the plaintiff); that he hired a man to look after them, and that they were in his possession until they were taken by the defendant, Braase, under the writ of attachment; that he paid charges claimed by Lufkin for breeding the mares; that he paid Nelson Brothers twenty-five dollars, which was all they demanded for wintering the horses in their possession; that he also paid the taxes on the horses; twenty-five dollars were paid to Nelson Brothers at the time they delivered the horses to the plaintiff in the spring; that he only held the horses and other property as security for a debt of $ 1,500; that, at the time of said loan, the property was not pointed out to him, but he had frequently seen the horses before that time, and knew them well; that, at the time the loan was made, Nelson Brothers, who had the horses in their corral, were present, and Kinney and this plaintiff (Murphy) called them out, and explained that the property had been turned over to Murphy, and that they were to hold it for him. The testimony introduced on the part of the defendant was: 1. The writ of attachment by virtue of which the property was levied upon; 2. The defendant was introduced as a witness, and testified as follows: "I took into my possession the property...