Appeal
from district court, Eagle county.
Replevin
by William A. Johnson, purchaser at the trustee's sale
under a trust deed executed by the South Park Land & Cattle
Company upon certain personal property as security for its
bonds, against William T. Roberts, sheriff, who levied upon
such property under an attachment. From a judgment for
plaintiff, defendant appeals. Reversed and remanded.
This
case was tried to the district court on a stipulation which
admitted the facts to be as stated, to wit: "It is
hereby agreed and stipulated by and between the parties
hereto that the following are the facts material to the
issues herein: First. On or about September 8, 1887, the
South Park Land and Cattle Company, a Colorado corporation
filed for record in the office of the county clery of Fremont
county, at Canon City, in said county and state aforesaid, a
certain instrument in writing (copy of which is hereto
annexed, but the authority of the company
to execute the same and the resolution of it or its board of
directors empowering its president or secretary to execute
the same is not admitted by the defendant), whereby it
conveyed to one T.M. Harding, as trustee, certain chattel
property, including the property herein in dispute, to secure
the payment of certain bonds of the company (the authority to
give which not being admitted), amounting to sixty thousand
dollars, due in ten years after September 1, 1887, and
bearing interest, payable semiannually on the first day of
March and the first day of September in each year; provided
that, upon default either in the payment of the interest on
said bonds or any of it, as in said instrument conditioned
the holder of any of said bonds, there being sixty of them
for one thousand dollars each, might direct the trustee in
said instrument or chattel mortgage mentioned to forthwith
sell and dispose of said property, or so much thereof as was
necessary to pay said bonds, after giving certain notice of
the time and place of the said such sale. Second. That one
George Westlake was, on or about March first, 1890, the
holder of thirteen of said bonds, and the interest due
thereon at said date was not paid, nor was it paid at the
expiration of ninety days thereafter; upon which said default
said Westlake directed said trustee, Harding, to sell and
dispose of said property, and apply the proceeds agreeably to
the terms of said mortgage. Third. In pursuance of such
direction, said trustee proceeded to advertise a sale of said
property, according to the provisions of said mortgage, on
the 31st day of July, A.D.1890, to take place at Canon City
Fremont county, Colorado, on the 7th day of October, 1890
which said sale was adjourned until October 17, 1890, at
which time the said property was sold by said trustee,
Harding; and W.E. Johnson, plaintiff herein, at such said
sale became and was the purchaser of said chattel property.
Fourth. On
or about August 25, 1890, the said T.M. Harding, as such said
trustee, took possession of the home ranch
of said company, located in Park county, Colorado, and took
such possession as he could by taking possession of the
headquarters of the said company, of the personal property
included in the said chattel mortgage; the stock therein
described being at large upon the public range. He gathered
none thereof, and did not reduce the same to actual personal
possession. The property herein in dispute was at that time
in Eagle county, and no actual possession was then or ever
taken of it by said Harding, or the plaintiff herein, until
after the commencement of this replevin suit. Also, said
Harding, on or about said August 25th, went to the town of
Alma, Park county, Colorado, and notified Joshua Mulock,
general manager and agent of said company, that he had taken
possession of the mortgaged property, as trustee, on account
of the aforesaid default in interest payment on said bonds;
to which statement said Mulock made no reply. Fifth. The
principal office of said company was by its articles of
incorporation declared to be at Canon City, Fremont county,
Colorado. Sixth. The judgment of $6,252.45, besides costs, in
the Park county (Colorado) district court in favor of one
Chauncey I. Gumaer, and against said South Park Land and
Cattle Company, upon which the execution issued under which
defendant herein justifies his levy, includes a claim of
$5,650.30 assigned to him by said Joshua Mulock, general
manager and agent of said cattle company, which amount said
Mulock claimed to be due him from said company for moneys
advanced to and services rendered for said the South Park
Land and Cattle Company. Seventh. On September 10, 1890, in
the district court of Park county, Colorado, one Chauncey I.
Gumaer began suit to recover of and from said the South Park
Land and Cattle Company, $6,172.94, interest, and costs, and
at once caused attachment writs in aid thereof to issue to
Park and Eagle counties against the property of said company
therein. By virtue of such writ to Eagle county, defendant
herein, W.T. Roberts, sheriff of said Eagle county, on or
about September 13, 1890, at said county,
and not elsewhere, attached and took possession of said
property herein in dispute as the property of and belonging
to the said the South Park Land and Cattle Company; the same
being found in possession of the said company's agent and
having been taken therefrom. Afterwards, and on or about
October 28, 1890, said Gumaer, in said above action in said
Park county district court, recovered, in due form of law,
judgment against the said the South Park Land and Cattle
Company for the sum of $6,252.45 and costs, and thereupon
special execution issued in due form of law upon the
aforesaid judgment from the office of the clerk of said Park
county district court to defendant herein, as sheriff of said
Eagle county, commanding him to sell the stock herein in
dispute and theretofore attached by him as aforesaid; and
upon defendant proceeding to advertise for sale said
property, under said writ, plaintiff herein instituted this
replevin suit, and took possession of said property from
defendant, and still retains it. Said judgment is now in full
force and wholly unsatisfied. Defendant was, when he served
said writ, and yet is, sheriff of said Eagle county. Eighth.
Actual possession of the particular stock in this suit in
dispute was never taken by said trustee, or by plaintiff, at
any time prior to the commencement of this suit; no demand
for a delivery...
