Sharp v. Johnson

• Citation: 38 Or. 246,63 P. 485
• Parties: SHARP v. JOHNSON.
• Decision Date: 14 January 1901
• Court: Supreme Court of Oregon

63 P. 485

38 Or. 246

SHARP v. JOHNSON.

Supreme Court of Oregon

January 14, 1901

Appeal from circuit court, Lane county; J.W. Hamilton, Judge.

Action by Ola Sharp against A.J. Johnson. From a judgment for plaintiff, defendant appeals. Reversed

This action was brought to recover possession of a race horse called Black Alder. The plaintiff alleges that she is the owner of an undivided one-third interest in the horse, and that B.L. Bradley is the owner of the other two-thirds: that she had a lien on Bradley's interest therein, for the keep and board of the horse, under section 3684 of the statute (Hill's Ann. Laws), and was in possession of the animal on the 21st of April, 1898, when defendant wrongfully and unlawfully took him from her. The defendant in his answer denies all the material allegations of the complaint, except the taking; and for affirmative defenses alleges (1) that the horse belonged to T.C. Sharp and B.L. Bradley, who were indebted to R.R. Hays for the purchase price thereof in the sum of $500; that on the 21st of April, 1898, Hays commenced an action against Sharp and Bradley, and caused a writ of attachment to be issued, under which the defendant, as sheriff of Lane county, attached the horse as their property by taking him into his custody; (2) that the plaintiff is the wife of T.C. Sharp, and, prior to the date referred to, she and her husband conspired and confederated together, with the purpose and intent to cheat Bradley out of his interest, and Hays out of his debt, by wrongfully and unlawfully pretending and claiming that Sharp had sold his interest in the horse to the plaintiff, and that she had an agister's lien on Bradley's interest, which she was attempting to enforce at the time the horse was seized under the writ of attachment; that T.C. Sharp was and is insolvent; that there was no consideration for the alleged transfer from him to the plaintiff of his interest in the horse, or for her alleged lien on Bradley's interest; and that, at the time the horse was attached, he was in a barn on the premises occupied by the plaintiff and her husband as a residence. The allegations of the answer were put in issue by a reply, and the trial resulting in a judgment for plaintiff, the defendant appeals, assigning as error the overruling of his motion for a nonsuit, and the refusal to give certain instructions requested by him.

W.C Hale, for appellant.

John M Williams, for respondent.

BEAN C.J. (after stating the facts).

The motion for a nonsuit was based on the theory that the plaintiff failed to prove a cause sufficient to be submitted to the jury, and we think should have been sustained. The plaintiff claims title to an undivided third interest in the animal in controversy by purchase from her husband. She testified that such interest was transferred to her on the 25th of January, 1897, two days after the purchase from Hays in consideration of money she had previously advanced to her husband for the payment of certain bills and expenses incurred by him. She gave evidence tending to support her claim, which, while far from clear or satisfactory, was perhaps sufficient to authorize a finding by the jury that she was the owner by purchase of her husband's undivided interest. But this alone would not entitle her to recover possession of the animal, because replevin will not lie for an undivided interest in personal property. Shinn, Repl. § 206; Cobbey, Repl. (2d Ed.) § 238; 20 Am. & Eng.Enc.Law, 1050; Phipps v. Taylor, 15 Or. 484, 16 P. 171; Huffman v. Knight, 36 Or. 581, 60 P. 207. Unless, therefore, she was entitled to possession as against the creditors of Bradley, the co-owner, she cannot prevail in this action, although she may be the owner of an undivided interest therein. The interest of one tenant in common in personal property may be attached for his individual debt, and the officer may take all the property into his custody without being guilty of a conversion as to the other tenant's share. "This," says Mr. Freeman, "is merely one of the disagreeable incidents of their joint ownership. In no other way could the interest of the defendant be subject to execution; for an execution sale of chattels not in the possession of the sheriff, nor present at the sale, would invite their sacrifice, and could not be tolerated. Taking possession is not optional with the officer. He must take possession, or in some way subject the property to his control, in order to make a valid levy and sale." 2 Freem. Ex'ns (3d Ed.) § 254a. See, also, 1 Freem. Ex'ns, § 125; Drake, Attachm.

(6th Ed.) § 248; Waldman v. Broder, 10 Cal. 378; Bernal v. Hovious, 17 Cal. 541; Veach v. Adams, 51 Cal. 609; Remmington v. Cady, 10 Conn. 44; Gaar v. Hurd, 92 Ill. 315.

This brings us to the question of the validity of the plaintiff's alleged lien on Bradley's interest, for unless she was entitled to hold possession as against him by reason of such lien, her action must fail. It seems from the testimony that the plaintiff's husband is a horse trainer, and that he and Bradley purchased Black Alder for the purpose of taking him around the country to the various race courses, and entering him for races; that Sharp, or the plaintiff, as she contends, was to have charge of him for both parties, and to be allowed $20 a month for keeping and training him; that at the time of bringing the action she claimed a balance due for such services, and for freight, shoeing, entrance money, and jockey fees, of $410.72, and a lien on the...