Tetrault v. O'Connor
| Decision Date | 20 June 1898 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Pembina County; Sauter, J.
Action by Joseph Tetrault against A. M. O'Conner. Plaintiff had judgment, and defendant appeals.
Affirmed.
W. J Kneeshaw, for appellant.
J. D Stack, for respondent.
Action of conversion against a sheriff for the value of a stock of goods seized and sold by the officer, but of which plaintiff claims to have been the owner. The officer justified under a writ against plaintiff's vendors. The only issues related to the ownership of the goods and their value. There was a verdict for plaintiff, a new trial was denied, judgment upon the verdict, and defendant appeals.
Plaintiff's vendors had been doing business as merchants. They made an assignment for the benefit of creditors. From that assignment they reserved goods valued at $ 1,500 as their exemptions under the statute. These goods had been separated from the general stock, but not removed from the building. The building and general stock were in the possession of the assignee. The assignors sold the property claimed as exempt to plaintiff, by bill of sale, for the sum of $ 1,000, and plaintiff claims to have taken immediate and continued possession thereof. The defendant denied the bona fides of the sale; claimed that it was made to defraud the creditors of the vendors, and that there had been no change of possession as required by statute, and hence the sale was prima facie fraudulent as to existing creditors of the vendors; and claimed also that the debt upon which the writ against such vendors was based was incurred for property obtained under false pretenses and fraudulent statements.
The errors assigned relate to the rulings upon evidence, the refusal of the Court to direct a verdict at the close of plaintiff's testimony, and the order overruling the motion for a new trial. The motion for a directed verdict was waived by not being renewed after the testimony was all in. Bowman v. Eppinger, 1 N.D. 21, 44 N.W. 1000; Colby v. McDermont, 6 N.D. 495, 71 N.W. 772. The ruling on the motion for a new trial will need no consideration after the discussion of the rulings upon the evidence, as it was practically based thereon.
The trial court excluded all evidence offered by defendant tending to show that the debt to satisfy which the property was seized was incurred by plaintiff's vendors for property obtained by fraud and false pretenses. It is urged that this is error, for two reasons: First, if the property was in fact exempt, there could be no fraud, as to creditors based upon any transfer thereof. Hence it was material for defendant to show that it was not exempt, and as our statute does not allow general exemptions, as against a debt incurred by fraud or false pretenses, it was proper to allege and prove such fraud. This claim is based upon Taylor v. Rice, 1 N.D. 72, 44 N.W. 1017, where, in a somewhat similar case, we held that fraud might be shown to defeat exemptions. And, second, it is urged that among the goods so seized by the officer there were some of the specific goods purchased by plaintiff's vendors from the plaintiff in execution, and, as there was fraud in their purchase, no title passed to the purchaser, and he could give none, and as to such property, at least, the seizure was rightful. The Court instructed the jury that there was no question of exemption in this case, for the reason that plaintiff's vendors had not claimed their exemptions and had them set apart as required by law. It is therefore perfectly clear that there was no prejudicial error in refusing to permit defendant to show fraud in order to defeat exemptions, as the jury were plainly instructed that the property was not exempt in the hands of plaintiff's vendors. As to the second point, defendant seized the goods as the property of plaintiff's vendors. He sold it as their...
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