Sweetland v. Oakley State Bank

• Decision Date: 01 May 1925
• Citation: 236 P. 538,40 Idaho 726
• Parties: L. B. SWEETLAND, Appellant, v. OAKLEY STATE BANK, a Corporation, and E. B. WHITE, Sheriff of Jerome County, Respondents
• Court: Idaho Supreme Court

236 P. 538

40 Idaho 726

L. B. SWEETLAND, Appellant, v. OAKLEY STATE BANK, a Corporation, and E. B. WHITE, Sheriff of Jerome County, Respondents

Supreme Court of Idaho

May 1, 1925

FRAUDULENT CONVEYANCES - IMMEDIATE DELIVERY AND CONTINUED CHANGE OF POSSESSION - STATUTE - EVIDENCE-NONSUIT-FINANCIAL STANDING OF VENDOR-CREDITOR OF VENDOR-PARTIES COMPLAINING.

1. Under C. S., sec. 5434, an alleged sale of personal property not accompanied by an immediate delivery and continued change of possession is conclusively presumed to be fraudulent and void as against creditors of the vendor.

2. Under C. S., sec. 5434, where the facts are undisputed it is for the court to determine as a question of law whether there has been an immediate delivery and continued change of possession.

3. Where there is no substantial evidence from which the jury may draw the legitimate inference that there has been an immediate delivery and continued change of possession, the court is justified in granting a nonsuit.

4. To satisfy the statute there must be both an immediate delivery and a continued change of possession.

5. It is permissible to show the financial circumstances of the vendor at the time of such alleged transfer.

6. It is not only permissible but necessary to show that the party complaining of the sale is a creditor of the vendor.

APPEAL from the District Court of the Eleventh Judicial District for Jerome County. Hon. William A. Babcock, Judge.

Suit to recover personal property. Instructed verdict for defendants. Judgment affirmed.

Action of the trial Court sustained. Costs to respondents.

Bothwell & Chapman, for Appellant.

There is no fixed rule in law as a test for ascertaining the meaning of the terms "immediate delivery" and "actual possession" as used in C. S., sec. 5434 but the determination thereof is purely and solely a question of fact for the jury in each particular case from all of the facts and circumstances which would throw any light on the transaction. The court could not properly withdraw these questions from the jury. (Simons v. Daly, 9 Idaho 87, 72 P. 507; Hazard v. Cole, 1 Idaho 276; Cahoon v. Marshall, 25 Cal. 198; Bell v McClellan, 67 Cal. 283, 7 P. 699; Gould v. Huntley, 73 Cal. 399, 15 P. 24.)

The facts in evidence sufficiently and conclusively constitute a delivery and change of possession of the automobile within the meaning of C. S., sec. 5434. (Bunting v. Salz, 3 Cal. Unrep. 193, 22 P. 1132; Williams v. Lerch, 56 Cal. 330; Morgan v. Miller, 62 Cal. 492; Cameron v. Calberg, 3 Cal. Unrep. 637, 31 P. 530; Henderson v. Hart, 122 Cal. 332, 54 P. 1110; Sydnor v. Gee, 4 Leigh (Va.), 535; Trimble v. Hunt, 169 Ill.App 259; Goad v. Wellendorf, 67 Colo. 40, 185 P. 470; Buckley v. Jennings, 95 Vt. 205, 114 A. 40.)

A motion for a directed verdict and the giving of such instruction has the same effect as the making and sustaining of a motion for a nonsuit, and admits the truth of the plaintiff's evidence, and every inference of fact that can be legitimately drawn therefrom, and is to the effect that there is no evidence supporting the plaintiff's case; and where there is evidence supporting the complaint, as there is in this case, the giving of such instruction is erroneous. (Keane v. Pittsburg Lead Min. Co., 17 Idaho 179, 105 P. 60; McAlinden v. St. Maries Hospital Assn., 28 Idaho 657, Ann. Cas. 1918A, 380, 156 P. 115; Tipsword v. Potter, 31 Idaho 509, 174 P. 133, 6 A. L. R. 527; McKenna v. Grunbaum, 33 Idaho 46, 190 P. 919; Dellwo v. Peterson, 32 Idaho 172, 180 P. 167; 38 Cyc. 1565, 1567, 1576.)

Ray Agee, for Respondents.

Under the provisions of C. S., sec. 5434, every transfer of personal property 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. (27 C. J. 577, 578, and notes 57-59; Guthrie v. Carney, 19 Cal.App. 144, 124 P. 1045; Bassinger v. Spangler, 9 Colo. 175, 10 P. 809; Bartell v. Griffin, 47 Colo. 569, 108 P. 171; Chavez v. Haynie (Colo.), 225 P. 852; Harkness v. Smith, 3 Idaho 221, 28 P. 423; Ahlstrom v. Tage, 31 Idaho 459, 174 P. 605.)

In an action of this kind, where the material facts are undisputed, it is for the court to determine as a question of law whether the facts show such "actual and continued change of possession" as will render the transfer of the property valid as against the creditors of the seller. (27 C. J., 841, and note 17; Israel v. Day, 41 Colo. 52, 92 P. 698; Jacobson v. Bunker Hill & S. Min. & Con. Co., 3 Idaho 126, 28 P. 396; Walters v. Ratliff, 10 Okla. 262, 61 P. 1070; Davis v. Patterson, 69 Colo. 226, 193 P. 662; Bassinger v. Spangler, 9 Colo. 175, 10 P. 809; Hallet v. Parrish, 5 Idaho 496, 51 P. 109; Bell v. McClellan, 67 Cal. 283, 7 P. 699.)

When the property is susceptible of it, there must be an actual, open, visible and notorious change of possession, indicated by such outward and visible signs as give notice to all the world that title to the property has passed to the purchaser, and that the vendor's control over it has ceased. The change must be open and so long continued as to indicate to the world at large that there has been a change of ownership. A constructive change of possession will not suffice. (27 C. J. 579, 580, and notes 74-76; Johnson v. Sage, 4 Idaho 758, 44 P. 641; Brown v. Herrick, 34 Idaho 171, 200 P. 117; Good v. Corrington, 61 Colo. 427, 158 P. 284; Davis v. Patterson, 69 Colo. 226, 193 P. 662; Israel v. Day, 41 Colo. 52, 92 P. 698; Pearce v. Boggs, 99 Cal. 340, 33 P. 906.)

It is the duty of the trial court to direct a verdict, unless there be substantial evidence tending to prove in favor of plaintiff all the controverted facts necessary to establish his case. (Blackwell v. Kercheval, 29 Idaho 473, 160 P. 741; In re Sharon's Estate, 179 Cal. 447, 177 P. 283; In re Baldwin's Estate, 162 Cal. 471, 123 P. 267; Young v. Washington Water Power Co., 39 Idaho 539, 228 P. 323; Kohn v. National Film Corp. of America, 60 Cal.App. 198, 212 P. 207; In re Wasson, 54 Cal.App. 269, 201 P. 793; McIntyre v. Northern P. Ry., 56 Mont. 43, 180 P. 971; Dickerson v. Incorporated Town of Eldorado, 64 Okla. 142, 166 P. 708; 38 Cyc. 1565-1567, and notes 83-90, 1571, and note 16.)

GIVENS, J. Wm. E. Lee, Budge and Taylor, JJ., concur.

OPINION

GIVENS, J.

Sweetland claiming to be the owner, sued to recover the possession of an automobile attached by the sheriff in a suit by the Oakley State Bank against Worthington, later sold by the sheriff to said bank. On the trial before a jury, at the conclusion of defendant's case the court instructed the jury to return a verdict against plaintiff on the ground that at the time of an alleged sale of the car from Worthington to Sweetland there had been no immediate delivery and continued change of possession of the car as prescribed by C. S., sec. 5434. A bill of sale, dated December 7th or 8th, drawn by a third party who did not testify was introduced in evidence.

With regard to the sale Worthington testified:

"I owed Sweetland $ 300. I had a horse of his and brought it up here in the spring of 1920. I allowed him $ 200 for the horse. I didn't want the car and he did, so I said to Mr. Sweetland, on the night of the 3d of December, 1920, at Hazelton--"

"So I said, 'Give me $ 500 more and you can have the car.' He said, 'All right,' and gave me a check for $ 500. I had the car and wanted to use it until I left Idaho. He said, 'All right.' I stripped a gear and couldn't take the car to him before I left. I went back there again and roads were so bad I couldn't take it down to him. He said, 'Arrange to store it,' and I did, at the garage in Hazelton, at $ 6.00 a month. He was to call for it."

And later:

"Q. Where did you deliver the automobile in question to L. B. Sweetland?

"A. I met him and showed him the car. When I left Idaho [The evidence shows that Worthington was going and did go to Canada] I left the car in the garage at Hazelton for him to get it.

"Q. . . . state whether or not you informed or advised the person in charge of such garage at the time the automobile was left there as to the ownership of such car.

"A. . . . I left it in Hazelton at a garage, and I told the garageman there--Atherton, I think his name was--to hold the car for Sweetland till he called for it.

"Q. . . . state what information or advice respecting the ownership of the automobile you gave to such garage.

"A. Just to keep the car for Sweetland--that is, at Hazelton."

Sweetland testified that on December 7th or 8th, when he and Worthington were alone together, he got into the car and drove it for about one-half mile and that the car was not taken by him to his home because of the bad condition of the roads. The testimony shows that after the claimed sale on December 3d or 4th, or 7th or 8th, Worthington continued to use the car in the same manner as before, that he bought a tire at Burley which was charged to him, and that during the same time his daughter used the car and that he having stripped the gears, new ones were installed in the Hazelton garage, the parts being secured and paid for by Worthington. No taxes were paid on the car and the license was not changed from Worthington to Sweetland. Atherton did not testify and Freeman, the owner of the garage at Hazelton, testified as follows:

"Q. Who brought that car into your garage?

"A James Worthington.

"Q. To whom did he deliver it?

"A. To myself.

"Q. Did he state anything to you at the time he delivered that car to you?

"A. Why, he said he intended to leave it...