Sweeten v. Ezell

• Decision Date: 24 February 1917
• Citation: 163 P. 612,30 Idaho 154
• Parties: C. H. SWEETEN, Respondent, v. H. H. EZELL, Sheriff of Oneida County, Idaho, Appellant
• Court: Idaho Supreme Court

163 P. 612

30 Idaho 154

C. H. SWEETEN, Respondent, v. H. H. EZELL, Sheriff of Oneida County, Idaho, Appellant

Supreme Court of Idaho

February 24, 1917

SALE OF PERSONAL PROPERTY ON EXECUTION-DELIVERY OF POSSESSION-CONFLICT OF EVIDENCE.

1. Sec 3170, Rev. Codes, provides that "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 Held, that where A purchases, at an execution sale, hogs belonging to B, and sold thereat in partial satisfaction of a judgment against him, and he leaves them in B's possession paying him to care for them, sec. 3170 does not apply, and B's judgment creditors obtain no rights against A in respect to the hogs by reason of his failure to remove them from B's possession.

2. An appellate court will not disturb the judgment of a trial court because of conflict in the evidence where there is sufficient proof, if uncontradicted, to sustain it.

[As to retention of possession of chattels by judgment debtor after sale of same, see note in 15 Am.Dec. 671]

APPEAL from the District Court of the Fifth Judicial District, for Onedia County. Hon. J. J. Guheen, Judge.

Action for conversion of personal property and damages. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

T. E Ray, for Appellant.

Davis &amp Evans, for Respondent.

Counsel cite no authorities.

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

Respondent instituted this action to recover the value of 235 head of stock hogs, more or less, which, he alleged, appellant wrongfully took from his possession and sold and which he claims were his property at the time of the taking, together with damages and costs.

Appellant answered alleging that the property, at the time of the taking, belonged to Warren Sweeten, brother of respondent, and that he, the appellant, as sheriff of Oneida county, and that he, the appellant, as sheriff of Oneida county, made the levy and sale under and by virtue of a writ of execution issued in an action wherein the Utah Association of Credit Men obtained a judgment against Warren Sweeten.

By stipulation the cause was tried by the judge without a jury and resulted in a judgment in favour of respondent for $ 1,100, the value of the hogs, together with $ 200 damages sustained as a result of the taking and selling, and costs of action.

Appellant moved for a new trial. His motion was denied and he has appealed from the judgment and from the order denying his motion.

Two questions must be decided in order to determine this case, namely: Who was the owner of the 235 head of hogs sold by appellant, the respondent, or his brother, Warren Sweeten? If it is determined that respondent was the owner at the time of the levy and sale, was the amount of the judgment awarded by the trial court reasonable and proper?

We will briefly review the material evidence submitted upon the trial.

In substance, respondent introduced evidence to the effect that the Utah Association of Credit Men obtained a judgment for something over $ 2,450 against Warren Sweeten and levied upon his personal property and that, at an execution sale held on May 5, 1915, said property, which consisted of about 275 head of hogs, was sold to respondent for $ 1,500.

Respondent testified that immediately after the sale he took possession of the hogs and that thereafter he sold part of them and bought other which he placed with those remaining and that he hired his brother, Warren Sweeten, to help him in operating the farm, whereon they were kept and which formerly belonged to his brother, and in caring for the stock and that the paid him a salary of $ 50 per month for his services. He further testified that although, at times, his brother bought and sold hogs, he did it as his, respondent's, agent.

In the suit of the Utah Association of Credit Men against Warren Sweeten, as above referred to, the judgment was only satisfied in part by the sale of the hogs which respondent purchased and a second writ of execution was issued and the hogs now claimed by him were levied upon and sold by appellant under and by virtue of this second writ.

Respondent further testified that the hogs sold under and by virtue of the second writ were made up, partly, of the stock he purchased at the former execution sale and partly of stock he bought, from time to time, since that sale. and partly of stock he bought, from time to time, since that sale.

Appellant introduced a taxpayer's statement, signed by respondent on May 7, 1915 stating that he...