Rapple v. Hughes

• Decision Date: 09 July 1904
• Citation: 77 P. 722,10 Idaho 338
• Parties: RAPPLE v. HUGHES
• Court: Idaho Supreme Court

77 P. 722

10 Idaho 338

RAPPLE v. HUGHES

Supreme Court of Idaho

July 9, 1904

SALE OF PERSONAL PROPERTY-DELIVERY AND POSSESSION.

1. A sale of personal property is attacked as fraudulent under the provisions of section 3021, Revised Statutes of Idaho, 1887 on the grounds that it was not accompanied by an immediate delivery and followed by an actual and continued change of possession of the property transferred. Evidence examined and held that it is sufficient to support the findings and judgment of the court below.

2. The determination as to what constitutes immediate change and delivery and actual possession is purely a question of fact to be determined by the jury, or the court in case a jury is waived, from all the evidence in each particular case following Simons v. Daly, 9 Idaho 87, 72 P. 507.

(Syllabus by the court.)

APPEAL from the District Court of Lemhi County. Honorable J. M Stevens, Judge.

From a judgment finding for plaintiff. Judgment affirmed.

Judgment affirmed. Costs awarded to respondent.

John H. Padgham and Quarles & Quarles, for Appellant.

The correct rule in cases of this kind is laid down by this court in Harkness v. Smith, 3 Idaho 221, 28 P. 423, where it is said: "It is not enough that there is an actual delivery and an actual change of possession as between vendor and vendee, so long as the property, without legal excuse, is so placed back into the same condition and the same apparent relation to the vendor that there is no such manifest and continued change of possession as would indicate to the world that there has been a change of title." (Norton v. Doolittle, 32 Conn. 405; Lawrence v. Burnham, 4 Nev. 361, 97 Am. Dec. 540; Wright v. McCormick, 67 Mo. 426; Dean v. Walkenhorst, 64 Cal. 78, 28 P. 60; Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Bessinger v. Spangler, 9 Colo. 175, 10 P. 809; Hallett v. Parrish, 5 Idaho 496, 51 P. 109; McFall v. Buckeye Granger's Warehouse Assn. et al. (Cal.), 55 P. 253; Engles v. Marshall, 19 Cal. 320.) In the case at bar there was nothing to notify third parties of the sale or of the claims of the new owner. (Claflin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336; Herr v. Denver etc. Co., 13 Colo. 406, 22 P. 770, 6 L. R. A. 641; Merrill v. Hurlburt, 63 Cal. 495; Bessinger v. Spangler, 9 Colo. 175, 10 P. 810.)

H. G. Redwine and F. J. Cowen, for Respondent.

Under our view of this case there can be no question that the transfer was not fraudulent under said section 3021. At the time the sale was made, Rapple drove two miles and a half after said separator, taking "immediate possession of same," and the possession thereof remained in him continuously until levied upon by the sheriff. Rapple could have remained in possession of the separator in no other way than he did. The kitchen in which Rapple slept at the house owned by Roche was his home. He placed the separator by his trunk, and it was just as much in his possession. The fact that the room occupied by Rapple was the kitchen used by the Roche family is one to be considered by the jury in arriving at its verdict, but it cannot be contended that this alone is conclusive, and, if it is not, the judgment appealed from must be affirmed. As was said by the supreme court of California in the case of Claudius v. Aguirre, 89 Cal. 501, 26 P. 1077: "The circumstances connected with a transfer of personal property are so varied that it would be impossible to frame a rule applicable to each case, or to determine in advance what acts would be sufficient to meet the requirements of the statute."

STOCKSLAGER, J. Sullivan, C. J., and Ailshie, J., concur.

OPINION

The facts are stated in the opinion.

STOCKSLAGER, J.--

This action was commenced in the probate court of Lemhi county by the plaintiff against the defendant as the sheriff of said county, in claim and delivery, alleging that the sheriff wrongfully levied upon and took possession of one certain cream separator, the property of plaintiff; that before the commencement of this action he demanded possession of said property which was refused by defendant; that the property is worth the sum of $ 125, and that he has been damaged by its wrongful detention in the sum of $ 50. Defendant denies the ownership or possession of said property of plaintiff at any time; denies that the property was worth at the time defendant took possession thereof any sum greater than $ 75, or that plaintiff was damaged in the sum of $ 50, or any other sum, for the possession of said property by defendant. Further answering defendant alleges that in December, 1902, one Haman commenced an action in the probate court against one Frank Roche to recover the sum of $ 64.17 for goods, chattels etc., sold by Haman to Roche, and on the sixteenth day of December, 1902, a summons was issued and served upon said Roche by defendant sheriff; also a copy of complaint. That on the eleventh day of December a trial of said cause was had in said court and judgment rendered in favor of plaintiff for the sum of $ 63.37 and costs. On the 13th of December, 1902, execution was issued by virtue of said judgment commanding defendant as sheriff of said Lemhi county to make the sum aforesaid out of the personal property of defendant Roche in that action. That on the fifteenth day of December, 1902, defendant, as sheriff, by Charles H. Simpson, deputy sheriff, duly levied upon the cream separator, goods and chattels mentioned in the complaint, and all the right, title and interest of the said Frank Roche; that the same was in the possession of said Frank Roche at Salmon City, and was the property of the said Frank Roche, by taking said cream separator into the possession of the defendant, and the defendant by virtue of being said sheriff now holds said property, under and by virtue of such levy for the purpose of making the amount of said judgment, and avers that he has a special property therein, and denies that he wrongfully withholds and detains said personal property from the possession of plaintiff, and denies that said plaintiff has, by reason of such possession of the defendant, been damaged in the sum of $ 50, or any other sum, or at all. Alleges that Frank Roche has not paid the amount due and owing on said judgment. A jury was waived and trial by the court was had. Judgment for plaintiff from which defendant appeals.

Appellant insists that there was no change in the possession of the property in controversy such as the law contemplates, or any change whatever. The undisputed facts as disclosed by the evidence are that plaintiff was working for Frank Roche on what was known as the McDonald ranch, about two and one-half miles from Salmon City. In his settlement with Roche he accepted a note for $ 90, and thereafter, on December 1st, he surrendered the $ 90 note and took the cream separator in payment thereof, agreeing to pay a note due "on the company" of $ 34--evidently meaning a note to the company. And he says at that time he got a bill of sale of the machine which was in evidence, to wit:

"Salmon, Idaho Dec. 1, 1902.

"I have this first day of December, 1902, sold to William Rapple, subject to last note due of $ 33.33 to the De Laval Separator, payable at Langsdorf & Company Bank, Salmon, on December 20, for ninety dollars ($ 90) due him for labor done this summer on the McDonald ranch.

(Signed) "FRANK ROCHE."

The witness says the above paper was given him at the time the separator was transferred to him, and is the only evidence of title he has; that he went and got the separator the same day and delivered up the note for $ 90 to Roche. It was on the fifteenth day of December, 1902, that the deputy sheriff levied upon and took possession of the separator. On cross-examination the plaintiff testified that he worked on the McDonald ranch for Frank Roche and Phil Roche as a hired man; the two of them gave him a note due the next spring--May, 1903. They had the separator in the kitchen on the McDonald ranch. Garfield Roche went with plaintiff to get the separator; he is a brother of Frank Roche. They took it directly to the house of Frank Roche in Salmon and unloaded it in the kitchen of his house there, and in the room where plaintiff slept. Plaintiff was boarding with Frank Roche at the time and it was the only home he had; had his trunk there in the room. Plaintiff borrowed Frank Roche's team to go after the separator. These facts are gleaned from the evidence of the plaintiff, and none of them seem to be disputed by the appellants, hence the question, and apparently the only question, is whether there was a change in the possession of this property. Appellant very earnestly insists that owing to the fact that respondent had been working on the McDonald ranch for Roche during the summer, that he only took the cream separator from one of the places of possession of Frank Roche to another of his possession; that he used Frank Roche's team to remove it and the brother helped him, all indicating to the outside world that he was still in the employ of Frank Roche and changed the location of the separator at the instance of and for the benefit of Frank Roche.

Our attention is called to section 3021, Revised Statutes. It says: "Every transfer of personal property other than a thing in action, and every lien thereon, other than a mortgage, when allowed by law, 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, and the successors in interest of such creditors, and against any persons on whom his estate...