Scheble v. Jordan

• Citation: 1 P. 121,30 Kan. 353
• Parties: A. R. SCHEBLE v. A. P. JORDAN, et al
• Decision Date: 01 July 1883
• Court: United States State Supreme Court of Kansas

1 P. 121

30 Kan. 353

A. R. SCHEBLE v. A. P. JORDAN, et al

Supreme Court of Kansas

July 1, 1883

Error from Reno District Court.

ACTION by Scheble against Jordan and another, to recover the possession of two horses. At the September Term, 1881, of the district court, defendants had judgment against plaintiff who brings the case here. The opinion states the facts.

Judgment reversed and case remanded.

Scheble & Vandeveer, for plaintiff in error.

Zimmerman & Taylor, W. R. Brown, and F. E. Gillett, for defendants in error.

BREWER J. All the Justices concurring.

OPINION

BREWER, J.:

This was an action of replevin for two horses. The case was tried by a jury; verdict and judgment were for defendants. Plaintiff alleges error. The plaintiff claimed title by purchase from one Mrs. E. J. Robinson, on March 7, 1881. He introduced in evidence the bill of sale, proved that the horses were delivered to him on that day, and that he had kept the possession until March 14th, when they were taken on an attachment against C. Bomgardner and J. C. Robinson, the husband of Mrs. E. J. Robinson. After the plaintiff had finished his testimony, the defendants introduced certain witnesses who testified, over plaintiff's objection, as to the testimony given by Mrs. E. J. Robinson on a prior trial of this case before a justice of the peace. It was not pretended that Mrs. Robinson was dead; on the contrary, it appeared that she was then living at the house of one of the witnesses. It amounted to simply this: the defendants were permitted to prove the declarations of Mrs. Robinson, made after she had parted with the title and delivered the possession of the property, and declarations making against the title she had attempted to convey. This is manifestly error. In Sumner v. Cook, 12 Kan. 162, we said in reference to a similar declaration:

"It was admissible only as a declaration by the vendor of defendants, qualifying his title. Such a declaration, to become evidence, must have been made by that vendor while holding possession. A declaration before he received, as well as one after he parted with his interest, is inadmissible."

See also the cases cited in that opinion, as well as Bump on Fraudulent Conveyances, page 548. As this testimony was erroneously received, and very likely had much weight with the jury, the error was a material one.

Error is also alleged in reference to the instructions. We shall not attempt to notice them in detail, but simply make these general comments; and preliminary thereto it will be necessary to state a few more of the facts disclosed by the testimony. J. C. Robinson and C. Bomgardner had been at one time the owners of this property as well as of some fifty-seven head of cattle which were running at large on the range south of Dodge City. They executed a bill of sale of all the property to Mrs. Robinson, the wife of J. C Robinson, and plaintiff's vendor. That bill of sale was executed February 1, 1881. On February 7, she executed a bill of sale of the same property to plaintiff under an agreement, as he testified, that the horses were to be his absolutely, and that he was to gather in the cattle and dispose of them, and after paying actual expenses return her the balance. The horses were seized on an attachment against C. Bomgardner and J. C. Robinson. Now we remark, that although the transfer from Bomgardner and J. C. Robinson to Mrs. Robinson may have been without consideration and therefore subject to be defeated by their creditors, yet having title and possession, if she conveyed them to plaintiff, and such conveyance was bona fide and upon a valuable consideration, they then passed beyond the reach of Bomgardner's and Robinson's creditors. Although she may not have been a bona fide purchaser from them, yet he was from her, and being such, took a perfect title. (Wilson v. Fuller, 9 Kan. 176; Bump on Fraudulent Conveyances, pp. 475, and...