Voorhies v. Hennessy

• Decision Date: 09 November 1893
• Citation: 7 Wash. 243,34 P. 931
• Court: Washington Supreme Court
• Parties: VOORHIES v. HENNESSY, CONSTABLE, ET AL.

34 P. 931

7 Wash. 243

VOORHIES v. HENNESSY, CONSTABLE, ET AL.

Supreme Court of Washington

November 9, 1893

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action of claim and delivery by N. Voorhies against Bruce Hennessy constable, Frank E. Jones, C. E. Burrows, A. P. Stockwell Milton Dwinnell, Frederick Toklas, G. Kaufman, H. E. Ruffe and Ed. Benn, to recover possession of four oxen, yokes, and chains. From a judgment for plaintiff, defendants Hennessy Jones, Burrows, Stockwell, and Dwinnell appeal. Reversed.

Ben Sheeks, Hogan & McGerry, and Geo. J. Moody, for appellants.

N. W. Bush, for respondent.

STILES J.

Appellant Hennessy, as constable, had levied upon certain personal property claimed by respondent, under certain attachments and executions issued at the suit of other appellants in actions brought by them against one Dunbar. The property consisted of four oxen, with yokes and chains, which had been the property of respondent, and, while owned by him, hired to Gray & Emerson. Some weeks before the levy, respondent gave Dunbar an absolute bill of sale of the property, and directed Gray & Emerson to pay the subsequently accruing hire to him. Upon the levy, respondent sued for possession, and sought to establish that the actual transaction with Dunbar was a chattel mortgage to secure the payment of $375 due from himself to Dunbar upon an account for goods. The consideration for the property mentioned in the bill of sale was $300, and it was claimed that the hire of the cattle, etc., was to be applied on the unsecured portion of the debt due Dunbar. Judgment was entered on the verdict of a jury for respondent.

1. The first objection made is that the court allowed Voorhies and Dunbar to testify as to their intent in connection with the bill of sale. But there probably never was a case where it was sought to show that a deed or bill of sale, absolute on its face, was in fact intended as a mortgage, where parol testimony was not admitted. Jones, Mortg. § 321. By such a proceeding the writing is not varied or contradicted.

2. Whether the officer had or had not notice of the true relation of Dunbar to the property seized could make no difference. If it really belonged to respondent, he had no right to interfere with it. The creditors of Dunbar were not purchasers for value, and could lose nothing, however the title turned out to be. Burke v. Johnson, 37 Kan. 337, 15 P. 204; Drake, Attachm. § 197.

3. If Dunbar was a mortgagee in possession after the maturity of his debt, appellants are in error when they assume that such a state of facts amounted to a forfeiture, so that the legal title to the property vested in him. Such is perhaps the general rule. Jones, Chat. Mortg. 566. But it does not prevail in this state. Silsby v. Aldridge, 1 Wash. 117, 23 P. 836.

4. That the judgment was not entered on the same day on which the motion for a new trial was overruled, but 10 days later, did not in any wise prejudice appellants, and constitutes no ground for error.

5. The assignment by Dunbar to the Weatherwax Lumber Company of the debt owing the former by respondent having been shown to be in writing, no further proof concerning the transaction should have been received until the writing was produced or accounted for. It was therefore error to allow several witnesses to testify concerning it. The assignment carried with it the right to the security, and it was a material matter, as tending to show the acts of the...