White v. Woodruff

• Decision Date: 20 February 1889
• Parties: WHITE ET AL. v. WOODRUFF.
• Court: Nebraska Supreme Court

25 Neb. 797

41 N.W. 785

WHITE ET AL.

v.WOODRUFF.

Supreme Court of Nebraska.

Feb. 20, 1889.

Syllabus by the Court.

1. Instructions to the jury, as set out at length in the opinion, examined and approved.

2. On the 5th day of January, J. A. W., being indebted to one M. in the sum of $500, half of which had become due on the 1st day of that month and the other half of which was to become due the 1st day of March following, executed a note to J. F. W. & Sons, a firm consisting of the father and brothers of said J. A. W., for $500, due one year from the date thereof, and to secure the payment of which note he executed to them a chattel mortgage upon all of his property, except certain ungathered corn, consisting of two mares, three horses, two colts, one pony, two cows and a number of agricultural implements. Before there was any change in the possession of any of said chattels from J. A. W. to J. F. W. & Sons, J. A. W. made certain statements, in the absence of J. F. W. & Sons, tending to show an intention on his part to fraudulently dispose of his property for the purpose of avoiding the payment of said debt to M. The assignees of M. recovered a judgment against J. A. W. on a part of said debt, and took in execution a part of said mortgaged chattels. J. F. W. & Sons brought suit against the sheriff, and replevied the chattels so levied on. On the trial, the sheriff called witnesses, and proved the said statement of J. A. W. On error to this court, held that, under the peculiar facts and circumstances of the case, such evidence was admissible.

Error to district court, Johnson county; BROADY, Judge.

Replevin by J. F. White & Sons against C. C. Woodruff, sheriff. Judgment for defendant, and plaintiffs bring error.S. P. Davidson, for plaintiffs in error.

C. K. Chamberlain and A. M. Appelget, for defendant in error.

COBB, J.

This was an action of replevin, tried to a jury in the district court of Johnson county. The property involved consisted of a mare and two yearling colts. This property was taken in execution by the defendant, who was then the sheriff of said county, upon an execution in his hands, issued upon a judgment rendered in favor of T. Appelget & Son against John A. White upon a note given by said John A. White to one McKinster for the rent of a certain farm. The evidence tended to prove that the mare and colts were originally the property of John A. White. Indeed, this is claimed by both parties. That on or about the 5th day of January, 1885, said John A. White executed and delivered to the plaintiffs, who are his father and brothers, a chattel mortgage on said property, with other property, to secure the payment of a promissory note of even date with said mortgage, and running one year from said date, for the sum of $500. That on or about the 20th day of May in the same year, the said John A. White, in consideration of the release and satisfaction of the said chattel mortgage, and in payment of the said note, sold and delivered the said mare and colts, with other property, to the plaintiffs, and executed and delivered to them an absolute bill of sale thereof. That plaintiffs retained the possession of said property on their farm for about one week, when it was returned to the possession of John A. White and Clara A. White, his wife, under an arrangement by which a part of it was leased to John A. White, and a part of it to Clara A. White, in whose possession it was when levied on by the sheriff. The consideration of said note and chattel mortgage is claimed by the plaintiffs, and testified by their witnesses, to have been an account held by J. F. White & Son, a firm composed of James F. White, the father, and Frank E. White, a brother of John A. White, for the board of the said John A. White for about two years, in 1880 and 1881; feed for his horses during said time; and certain seed wheat and other grain furnished to John A. White by said J. F. White & Son. There was also evidence on the part of the defendant that on or about the 1st day of February, 1885, shortly after the date of the said chattel mortgage, John A. White stated to a witness named F. W. Hutchison, who was engaged husking corn for said J. A. White on the place which he had rented of McKinster, that he wanted to get a good many teams, and get the corn out, and get his money for it, and the old fellow might go to the devil for his money; that in answer to witness' question to him as to “how he would fix the personal property,” he answered, “he would get it fixed all right.” Plaintiffs moved to strike out the above evidence, which motion was overruled. The verdict was for the defendant.

The plaintiffs, who bring the cause to this court on error, assign the following errors: “(1) The court erred in overruling plaintiffs' motion for a new trial; (2) the court erred in overruling plaintiffs' objections to and admitting improper testimony offered by defendant; (3) the court erred in sustaining defendant's objections, and excluding proper testimony offered by plaintiffs; (4) the court erred in giving each of the instructions asked by defendant; (5) the court erred in giving each of the instructions given by the court on its own motion; (6) the court erred in that the whole spirit and tenor of the instructions given by the court on its own motion were unfair, and prejudicial to said plaintiffs, and suggested to the jury an opinion or impressionon the part of the court that defendant should succeed; (7) the court erred in that the form of the judgment is not in accordance with the law in replevin cases, and does not permit the plaintiffs to return the property replevied in compliance with the judgment; (8) the judgment and verdict are contrary to the overwhelming preponderance of the evidence, and are contrary to law; (9) error of the court in that the amount of the recovery is too large.” Two instructions were given by the court at the request of the plaintiffs,--all that were asked by them, so far as appears from the record.

The following instructions, requested by defendant, were given: “(1) Transactions between relatives, whereby property is transferred from one to another in payment of an alleged past-due indebtedness, by reason of which creditors are deprived of their just dues, will be scrutinized very closely, and the good faith of such transactions must be clearly established. (2) The court instructs the jury that the law presumes every sale of personal property to be fraudulent and void as against creditors of the seller, unless a change of possession of the property from the seller to the purchaser accompanies and follows the sale, and this change must be an open and visible change, manifested by such outward signs as render it evident to persons dealing with such property that the possession of the former owner as such has ceased. (3) In this case, although the jury may believe from the evidence that the plaintiffs and the said John A. White, before the execution introduced in this case was levied upon the property, went through the forms of a sale from the latter to the former, still, if the jury further believe from the evidence that there was no apparent change in the possession of the property accompanying such sale, then the law presumes the sale to have been made with a fraudulent intent on the...