Wails v. Farrington

• Decision Date: 10 January 1911
• Docket Number: Case Number: 653
• Citation: 1911 OK 59,116 P. 428,27 Okla. 754
• Parties: WAILS et al. v. FARRINGTON.
• Court: Oklahoma Supreme Court

1911 OK 59

116 P. 428

27 Okla. 754

WAILS et al. v. FARRINGTON.

Case Number: 653

Supreme Court of Oklahoma

Decided: January 10, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Time for Taking Appeal--Order Overruling Demurrer. Although more than one year has intervened between the order of the court overruling defendant's demurrer to plaintiff's petition and the filing of the petition in error in the Supreme Court, this court will review the action of the court in overruling said demurrer on proceedings in error to review the final judgment, commenced within the statutory time.

2. REPLEVIN--Fraud--Possession--Sufficiency of Petition. Where a petition in replevin, after stating facts to show the jewelry to have been parted with by plaintiff in a trade to W. as a result of his fraud, stated that, after rescission and demand for its return, W. sold and "delivered said jewelry to" E., who "now claims said jewelry or an interest therein," and that, by reason of "said false, fraudulent, and wrongful detention of said property," she was damaged, etc.--held, that the same states facts sufficient to show E. in possession of the property at the commencement of the action.

3. SAME--Necessity for Demand--Bona fide Purchaser--Pre-existing Debt. A petition in replevin which, after stating facts sufficient to show the jewelry to have been parted with by plaintiff in a trade to W. as a result of his fraud, stated that, after rescission and demand for its return, W. sold it to E. for the consideration only of a credit on a promissory note theretofore executed, evidencing a debt pre-existing between them, and "delivered said jewelry to" E., "who now claims said jewelry or an interest therein," and that, by reason "of said false, fraudulent, and wrongful detention of said property," she was damaged, etc.--held, that the same states facts sufficient to show that E. came wrongfully into possession of the property, and that a demand for its return was unnecessary before the commencement of the suit.

4. SAME. Where W. secured possession of a stock of jewelry, the property of F., as the result of fraud in a trade with her and, after rescission and demand for its return, sold it to E. for the consideration only of a credit on a promissory note theretofore executed, evidencing a debt pre-existing between them--held, that E. was not a bona fide purchaser for value, and that F. was entitled to recover from E. in replevin the property or its value.

5. PROPERTY--Possession--Presumption of Continuation. Possession being a fact continuous in its nature, when its existence is once shown, it will be presumed to continue until the contrary is proved.

6. APPEAL AND ERROR--Filing of Cross-Petition--Expiration of Time. This court has no jurisdiction to entertain a cross-petition in error, unless the same be filed within one year after the rendition of the judgment complained of.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Replevin by Emma L. Farrington against J. C. Wails and W. F. Essex. Judgment for plaintiff, and defendants bring error. Affirmed.

Harris & Wilson and Claud Nowlin, for plaintiffs in error.

A. J. McMahan, for defendant in error.

TURNER, J.

¶1 This is a suit in replevin brought without bond by Emma L. Farrington, defendant in error, in the district court of Oklahoma county, against J. C. Wails and W. F. Essex, plaintiffs in error, for the possession of a certain stock of jewelry, or its value, $ 2,100. After separate general demurrers to plaintiff's amended petition filed and overruled, and both had answered, in effect, a general denial, and Essex, that he was an innocent purchaser for value, there was trial to a jury and verdict and judgment for plaintiff for the property, or its value, $ 2,000, and defendants bring the case here. No error is urged for Wails. The order of the trial court overruling Essex's demurrer to plaintiff's petition will be passed on here, although more than one year has elapsed since the making of such ruling. Conner, Sheriff, v. Wilkey, 41 P. 71.

¶2 In support of said demurrer, defendant contends the petition fails to state that Essex was in possession of the property at the commencement of the action. We think that the same may be fairly inferred. The petition substantially states that on February 9, 1904, plaintiff was and still is the owner of a lot of jewelry (describing it), of the aggregate value of $ 2,100; that she was and is entitled to the immediate possession thereof; that on said day in Oklahoma City said Wails represented to her that he owned a farm in Cleveland county of the value of $ 3,000, and proposed to trade the same to plaintiff for said jewelry and $ 900; that he made certain flattering representations concerning said farm, as a result of which she sent her agent to Norman to examine it; that he there met Wails and went with his agent to look at it; that her said agent, after viewing another farm, shown by Wails' agent with intent to defraud, returned and reported to her that he had seen the farm and that the same was well worth $ 3,000; that, believing the same to be true, she thereupon traded with Wails and delivered him said jewelry; that he thereupon executed to her a deed to a farm other than the one her agent saw, and placed the same in the bank to be delivered to her on payment of $ 900, balance due on said trade; that, upon the discovery of the fraud, she rescinded said trade, demanded of Wails a return of her jewelry and informed him that he could secure said deed from the bank, and that he then and there refused and still refuses to return said jewelry; that he has since "delivered said jewelry to defendant W. F. Essex," who "now claims said jewelry or an interest therein"; that he is not an innocent purchaser for value without notice, but acquired the same for a consideration of a credit on an indebtedness pre-existing between himself and Wails and with constructive knowledge of the fraud of Wails; that said property was not taken in execution or on any order or judgment against plaintiff, or for the payment of any tax, fine, &c. "that by reason of said false, fraudulent, and wrongful detention of said property" by said Wails and Essex, she had been damaged in the sum of $ 1,000--and prayed judgment for the return thereof or its value, together with said sum as damages.

¶3 As a suit in replevin cannot, be maintained against one who is not in possession of the property, either actual or constructive, at the commencement of the action, it is therefore necessary for plaintiff to allege and prove, as stated in the syllabus of Robb et al. v. Dobrinski, 14 Okla. 563:

"(1) That he is the owner of the property, or has a special interest therein; (2) that he is entitled to the immediate possession thereof; (3) that the property is wrongfully detained by the defendant."

¶4 As to "detain" is by Webster's International Dict., 1907, defined to mean "to hold or keep in custody," we say that when plaintiff alleged that Wails "delivered" the property to Essex, "who now claims" the same, and by "said false, fraudulent, and wrongful detention of said property" she was damaged, it was, in effect, to say that Essex detained her goods at the commencement of the suit, that is, wrongfully held and kept them in his custody.

¶5 In support of the demurrer it is next urged that a demand on Essex for a return of the property was necessary and should have been made before suit and so alleged. Whether such demand was necessary depends on whether the petition states facts sufficient to show that Essex came wrongfully into possession of the property. If he did, no demand was necessary. On this point the petition discloses that prior to the suit, while plaintiff was owner and in possession of the property, she parted with it to Wails, the fraudulent vendee; that, upon discovery of the fraud, she immediately rescinded the trade; that, after said trade was rescinded, Wails sold and parted with possession of the property to Essex, in consideration of a credit on an indebtedness pre-existing between them. Under this state of facts, after said rescission, Wails had no title or right of possession and could convey none to Essex, whose possession was therefore wrongful. Mechem on Sales, sec. 928, says:

"The fraudulent vendee obtains possession of the goods wrongfully, and as to him, therefore, except where there is consideration to be previously restored, no formal notice of rescission or demand for the goods is necessary before beginning action for their recovery. The suit itself is a sufficient notice and demand.

"The same rule has been applied also to those who have obtained the goods from such vendee with notice of the fraud or without parting with value for them, upon the ground that they stood in no better or different situation than the vendee himself."

¶6In Farwell et al. v. Hanchett et al., 120 Ill. 573, 11 N.E. 875, the court said:

"It is quite well settled, that when goods have been obtained by fraud by a vendee, or otherwise unlawfully obtained, the vendor, or true owner, may, without previous demand, maintain trover or replevin for the goods, against any person not holding them as an innocent purchaser for value. (Butters v. Haughwout, 42 Ill. 18; Bruner v. Dyball, id. 34; Hardy v. Keeler, 56 id. 152.) * * * The fraudulent vendee is not considered as a purchaser of the goods, but as a person who has tortiously got possession of them."

¶7 In Koch et al. v. Lyon, 82 Mich. 513, 46 N.W. 779, the court said:

"The main point relied on to reverse the judgment is that the circuit judge charged the jury that no demand was necessary before bringing suit. There was no error in this. Under the case made by the plaintiffs, the defendant's assignor, Visger, obtained possession of these goods by fraud, and it was not necessary for the plaintiffs to demand the goods of him before bringing replevin to recover them. Trudo v. Anderson, 10 Mich. 357; Carl v. McGonigal, 58 id. 567 (25 N.W. Rep. 516);

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