Sloan v. Coburn

• Decision Date: 31 May 1889
• Citation: 42 N.W. 726,26 Neb. 607
• Parties: WILLIAM G. SLOAN AND JONAS P. JOHNSON, PLAINTIFFS IN ERROR, v. WILLIAM COBURN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

42 N.W. 726

26 Neb. 607

WILLIAM G. SLOAN AND JONAS P. JOHNSON, PLAINTIFFS IN ERROR, v. WILLIAM COBURN, DEFENDANT IN ERROR

Supreme Court of Nebraska

May 31, 1889

ERROR to the district court for Douglas county. Tried below before DOANE, J.

REVERSED AND REMANDED.

Breckenridge & Breckenridge, for plaintiff in error, cited: Wells on Replevin, sec. 302; Turner, Frazer & Co. v. Killian, 12 Neb. 586; Gray v. Earl, 13 Iowa 188; Lefter v. Field, 52 N.Y. 622; Tucker v. Parks, 1 Pacific Rep. 431; Jones on Chattel Mortgages, 2d Ed., 352, 353 358; Bonns v. Carter, 20 Neb. 578; Omaha Book Co. v Sutherland, 10 Id. 334; Butts v. Privett, 14 P. 250; Grimes v. Farrington, 19 Neb. 48.

Montgomery & Jeffrey, John L. Kennedy, and Charles B. Keller, for defendant in error, cited: Richardson v. Steele, 9 Neb. 486; School District v. Shoemaker, 5 Id. 36; B. & M. R. R. Co. v. Young Bear, 17 Id. 669; Simpson v Armstrong, 20 Id. 512; Hagan v. Lucas, 10 Peters, 400; Hunt v. Robinson, 11 Cal. 262; White v. Dolliver, 113 Mass. 402.

OPINION

REESE, CH. J.

This was an action of replevin brought by plaintiffs in error against defendant in error to recover possession of a stock of groceries and other property. It is substantially agreed by counsel that on the 28th day of January, 1887, the firm of J. H. Johnson & Company, being indebted to plaintiff in the sum of fifteen hundred and forty dollars and fifty cents, transferred to plaintiff by bill of sale the property in question to secure the payment of said indebtedness. The property was immediately taken possession of by plaintiff under said bill of sale. Afterwards, and on the same day, other creditors of J. H. Johnson & Company sued out writs of attachment, and by virtue thereof the defendant, who was the sheriff of Douglas county, levied upon said property as the property of J. H. Johnson & Company, and took the same from the possession of plaintiffs. Thereupon plaintiffs brought their action of replevin. The trial was had in the district court to a jury, and a verdict was rendered in favor of defendant in error. Thereupon plaintiffs filed a motion for a new trial, which was overruled, to which ruling plaintiffs duly excepted. Judgment was then rendered on the verdict in favor of defendant and against the plaintiffs. The plaintiffs bring the case into this court by proceedings in error, and seek a reversal of the judgment upon the errors assigned in their motion for a new trial and petition in error. We will only examine such of the alleged errors as we deem material to this review, as upon new trial the questions omitted will not likely arise again.

It was and is contended by defendant in error that the transfer of the property made by J. H. Johnson & Company to Sloan, Johnson & Company, was fraudulent, and as a part of the evidence to sustain their theory of the case, they sought to prove certain statements made by J. H. Johnson after the transfer to Sloan, Johnson & Company. This evidence was objected to by plaintiff upon the ground, evidently, that after the transfer the statement of the vendor could not be received for the purpose of impairing the title of the vendee. The objection was overruled by the district court. It is shown by the record that at the time of the ruling upon the objection, the court stated that the testimony was not received for the purpose of impeaching or any way impairing the title which had been acquired by the firm of Sloan, Johnson & Company, but for the purpose of showing the intention of J. H. Johnson & Company at the time they made the transfer. In this ruling of the court we think there was no error. In order to prove the transaction fraudulent, it must have been established that J. H. Johnson & Company made the transfer with the intent and purpose of hindering, delaying, or defrauding, their creditors in the collection of their claims, and also that the firm of Sloan, Johnson & Company had knowledge of or participated in this fraudulent design. While it was not enough to show that the firm of J. H. Johnson & Company were actuated by fraudulent motives, yet as a part of the case it was essential to show that fact, although in the absence of other testimony the title of Sloan, Johnson & Company could not be impaired thereby. (Williams v. Eikenberry, 25 Neb. 721, 41 N.W. 770.)

For the purpose of showing the sheriff's interest in the property at the time of the trial, defendant in error was allowed to introduce in evidence certain writs of attachment which came into his hands after the property was replevied by plaintiff. In this we think the court erred. (Merrill v. Wedgwood, 25 Neb. 283, 41 N.W. 149.)

It is not deemed necessary here to rediscuss this question. We are satisfied with the decision in the case referred to, and see no reason why the rule should be changed. Any other rule would place a plaintiff in a replevin suit brought against an officer, at the mercy of all other persons having claims against the debtor.

The instrument by which the property in question was transferred to Sloan, Johnson & Company was as follows:

"Know all men by these presents: That we, J. H. Johnson & Company, of the first part, for and in consideration of the sum of fifteen hundred and forty dollars and fifty cents, lawful money of the United States, to us in hand paid at or before the ensealing and delivery of these presents, by Sloan, Johnson & Company, of the second part, the receipt whereof is hereby acknowledged, have bargained and sold, and by these presents do grant and convey, unto the said parties of the second part, their executors, administrators, and assigns, the following personal property, to wit: A general grocery stock, consisting of sugar, tea, coffee, canned goods, soap, cigars, tobacco, and such other goods as are usually kept in a retail grocery store; also a stock of salt and fresh meats; and all fixtures, including show cases, shelving, store furniture, etc., in the grocery store and meat shop of said J. H. Johnson & Company, at No. 701 and 703 Phil Sheridan street, in the City of Omaha, Neb; the intention being to include herein all personal property of all kinds in said store and shop and wareroom adjoining; also, one black horse, four light bay horses; also, two two-horse delivery wagons and two sets double and one set single harness; also one buckboard, one cutter, and one sewing machine.

"The said Sloan, Johnson & Company are to take immediate possession of said property, to sell the same at retail in the usual course of trade, and shall account to said J. H. Johnson & Company for any surplus over the said above mentioned sum, and the expenses of sale, etc.; belonging to us, and now in our possession at the place last aforesaid.

"To have and to hold the same unto said parties of the second part, their executors, administrators, and assigns, forever. And we do for ourselves, our heirs, our executors, and administrators, covenant and agree to and with the said party of the second part, their executors, administrators, and assigns, to warrant and defend the sale of said property, goods, and chattels, hereby made unto the said party of the second part, their executors, administrators, and assigns, against all and every person and persons whomsoever.

"In witness whereof we have hereunto set our hands and seal this 28th day of February, 1887."

On the trial it was shown that the date here mentioned was a mistake. It should have been the 28th day of January, 1887, that being the day upon which the instrument was made.

Upon the trial, at the request of defendant in error, the court gave to the jury the following instruction, number three of the series asked by defendant in error:

"3d. You are instructed that while a creditor may obtain payment in full of his claim to the exclusion of other creditors provided he takes no more than will be sufficient to satisfy his claim, provided he does not collude or agree with his debtors to hinder,...