Walklin v. Horswill
| Decision Date | 03 November 1909 |
| Citation | 123 N.W. 668,24 S.D. 191 |
| Parties | WALKLIN v. HORSWILL, Sheriff. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hamlin County.
Action by William Walklin against James Horswill, Sheriff of Hamlin County. Judgment for defendant. Plaintiff appeals. Affirmed.
John Jenkins and M. J. Russell, for appellant.
W. N Skinner and Hall, Lawrence & Roddle, for respondent.
This is an action in claim and delivery, which was brought to recover the possession of a lot of merchandise held by defendant as sheriff under and by virtue of certain warrants of attachments issued in actions brought against the brother of the plaintiff. The plaintiff claimed in his complaint that he was entitled to the possession of the property by virtue of a purported bill of sale of same given to him by his brother John Walklin, which said purported bill of sale plaintiff alleged was given solely as security. Plaintiff further alleged that these goods were wrongfully taken from his possession. The defendant in his answer alleged that John Walklin was still the owner of said property, and that the purported bill of sale was executed for the purpose of hindering, delaying, and defrauding the creditors of said John Walklin, which wrongful purpose was known to the plaintiff at the time he received such bill of sale. The cause was tried to a jury, and, when the evidence was all in upon motion of the defendant, the learned circuit court directed a verdict in favor of the defendant, and such a verdict was returned by the jury. A judgment having been entered thereon, and a motion for a new trial having been denied, the plaintiff brought this appeal from said judgment and order denying a new trial.
The only question before us is whether or not the trial court was warranted in directing the verdict. In order to sustain such ruling of the court, it being not a determination of a question of fact, but purely a decision of a question of law it must be found that, interpreting the evidence in this case as favorably to the appellant as possible, it still leaves facts established against the plaintiff and appellant, under which facts, as a matter of law, the defendant was entitled to recover. Bank v. Stebbins, 15 S.D. 280, 89 N.W. 674; Bohl v. Dell Rapids, 15 S.D. 619, 91 N.W. 315. The appellant strenuously urges that, under the evidence and issues in this case, there was a question of fraudulent intent in connection with the execution and delivery of the purported bill of sale, which question the trial court was bound to submit to the jury; appellant contending that such question of fraudulent intent was purely a question of fact and not of law.
Keeping in mind the rule above stated, that the evidence herein must be construed as favorably as possible to the plaintiff,, we find the following facts to be established: John Walklin, brother of plaintiff, was engaged in the mercantile and also in the real estate business. Prior to October 21, 1905, he had become indebted to the plaintiff for money loaned to him evidenced by two certain promissory notes, and on said date there remained unpaid about $4,000, which sum was long past due, and plaintiff had been endeavoring to collect same. At that time John Walklin was also indebted to one Frank J. Reed in the sum of some $2,000, which indebtedness was known to the plaintiff herein. On said date John Walklin was also indebted to one Geo. W. Parliament in the sum of some $700, which sum was past due. Just prior to October 21, 1905, John Walklin was closing a trade of some land for a stock of goods in another state, which goods were en route to the home of the Walklins on said October 21st. John Walklin returned from closing said trade for goods prior to October 19, 1905, and upon his return the plaintiff demanded that he be given a bill of sale of the personal property owned by John Walklin. A bill of sale absolute in its terms was given by John Walklin to the plaintiff, which was delivered October 21, 1905; the consideration therein named being $4,000 in hand paid, and the property covered thereby being the stock of general merchandise then in the possession of John Walklin at Castlewood, also the stock just traded for, which was at that time en route billed to the said John Walklin, as well as a certain dwelling house located on some farm land, all the hay belonging to said John Walklin on two quarter sections of land, all the grain belonging to John Walklin raised on a certain quarter of land, a lot of silver watches, and some other items of personal property. It appears, from oral testimony of the plaintiff, that the property named in said bill of sale comprised all the personal property of the said John Walklin. The bill of sale was filed in the office of the register of deeds on October 25, 1905. Plaintiff swears: That on October 21, 1905, he took possession of all the goods then at Castlewood; that he took possession of the other goods upon their arrival, paying all charges against the same; that he contracted for the help employed in selling of said goods; and that from that time and until November 1st he had the possession of the goods, and was selling the same at retail, applying the net proceeds, after payment of expenses, upon the indebtedness evidenced by the notes, which he held against his brother, and which he claims was not paid but merely secured by such purported bill of sale. On November 1st the defendant, as sheriff, under and by virtue of two warrants of attachment issued in actions brought by said Reed and Parliament against John Walklin to recover on their claims above mentioned, levied upon and seized, as the property of John Walklin, all of the merchandise remaining unsold, both that in the possession of John Walklin when the purported bill of sale was given, as well as that then en route. On November 2d, after such seizure, the plaintiff served upon the defendant a notice or demand for the goods levied upon, which notice contained the following: Attached to this notice was a sworn affidavit of plaintiff to the effect that he had read the notice and knew its contents, and that the statements therein contained were correct and true, and upon the trial he swore that he knew the facts stated in said notice at the time he swore to same. Plaintiff testified that he took a bill of sale, rather than a mortgage, because he wanted immediate possession of the goods and thought he could not take said possession under a mortgage, that said bill of sale was taken merely as security, and that when he had sold enough of the property to pay his claim and expenses the balance and any proceeds thereof in his hands were to be returned to his brother. The evidence offered by the plaintiff would show the merchandise to have been worth, all told, not less than $6,600. There is no evidence as to the value of the other property described in the purported bill of sale. Plaintiff further testified that, during the time that he was in possession of the goods, he knew that he had possession of them for the debt; that he was the owner until paid, but not absolute owner.
The appellant contends: That the evidence shows that the possession of this property was surrendered to him as security; that the whole arrangement created a pledge of this property; that if, under the evidence, it should appear that possession was not given him of the property, but that it remained in the possession of his brother, then the transaction would amount to a mortgage; and further that, even admitting that the transaction was a bill of sale conveying title to him, yet it was not the province of the court to pass upon the question of fraudulent intent in executing the same; but that the intent should have been left to be determined by the jury, under the provision of section 2371 of the Civil Code, reading as follows: "In all cases arising under section 991, or under the provisions of this title, except as otherwise provided in section 2369, the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration." Respondent, meeting these several contentions of the appellant, says: That, considering this transaction as either a pledge or mortgage, the evidence of the appellant himself shows such a conversion of these goods as to destroy the lien of such pledge or mortgage and leave the goods free therefrom; that, considering this transaction as a mortgage, it is an absolute nullity, for the reason that there was no recitation therein showing that the mortgagor received a copy; that if this transaction is neither a mortgage nor pledge, but an absolute transfer of the title, then that it is void as against creditors, owing to a secret trust under which the grantor reserved an interest in such goods inconsistent with the idea of an absolute transfer; and respondent contends that, the fact of this secret trust being admitted, there was no question of fact to submit to a jury, and the court was authorized to direct a verdict.
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