Williams v. Eikenbury
Decision Date | 06 February 1889 |
Citation | 25 Neb. 721,41 N.W. 770 |
Parties | WILLIAMS v. EIKENBURY, SHERIFF. |
Court | Nebraska Supreme Court |
1. The declaration of one from whom a party obtains title to property, made after the transfer of title, and in derogation thereof, is inadmissible for the purpose of defeating such title; but where the vendor, being examined as a witness to prove a sale, was asked on his cross-examination whether he had not, at a time subsequent to the alleged sale, offered to sell the same property, as the owner thereof, to another, which he denied, it was held legitimate, for the purpose of impeachment only, to call other witnesses to prove the fact.
2. Where an officer attaches property found in the possession of a stranger, claiming title, in an action of replevin therefor by such stranger, the officer, in order to justify, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued.
Error to district court, Cass county; BROADY, Judge.
For opinion on former appeal, see 34 N. W. Rep. 373.J. H. Haldeman, for plaintiff in error.
H. D. Travis and E. H. Wooley, for defendant in error.
This was an action of replevin, instituted in the district court, against the sheriff of Cass county, for the purpose of recovering the property described in the petition of plaintiff in error. The cause was tried to a jury, which trial resulted in a verdict and judgment in favor of defendant in error, and was brought into this court by proceedings in error, when the judgment of the district court was reversed, and the cause remanded. See Williams v. Eikenbury, 22 Neb. 210, 34 N. W. Rep. 373. Another trial was had in the district court, resulting in the same verdict and judgment as the first, and the cause is again presented for review by proceedings in error. It appears from the evidence that Lawrence Holland was at one time engaged in the lumber business, in the town of Manley, in Cass county, and that such an arrangement was made between himself and plaintiff in error here as resulted in the transfer of the lumber-yard to plaintiff in error. Holland being indebted at that time, his creditors soon after instituted attachment proceedings against him, and levied upon the lumber-yard in dispute, when plaintiff in error instituted an action in replevin for the possession of the property. Lawrence Holland was called as a witness for plaintiff in error, and upon his examination in chief he testified to the transfer to plaintiff in error. Upon his cross-examination he was asked if he did not, at a certain time, which was after the transfer to Williams, and after Williams had taken possession of the lumber-yard, say to Mr. Roberts, cashier of the Commercial Bank at Weeping Water, that he would turn the lumber-yard over to him. His answer was that he did not. He was then asked what he did say, when he answered: “I told Roberts I had turned the yard over to Mr. Williams, that I had sold the yard to Mr. Williams; as he had suggested to me to do,” etc. At another time, on cross-examination, substantially the same question was asked, to which objection was made, and which objection was overruled, and, after exception entered, witness answered, “No.” Other questions of similar import were asked, with like results. Among the witnesses called for the defense were Mr. Travis, Mr. Roberts, and Mr. Wooley, who were all interrogated upon the same matter, and, over the objection and exception of plaintiff in error, were permitted to testify, in substance, that in a conversation, at about the same time as that mentioned in the cross-examination of Holland, he (Holland) offered to turn over to the plaintiff in the attachment suit the lumber-yard, which was then in the possession of plaintiff in error, and which had been for some considerable time. The question presented by the issues in the case was as to the validity of the purchase of the lumber-yard from Holland by Williams, and it would seem that the purpose of defendant in error, in introducing the testimony referred to, was to impeach the witness Holland, and also for the purpose of proving title to the property mentioned at the time of the declaration. In the testimony of Mr. Wooley the following occurs: Haldeman objected,--incompetent, immaterial, and irrelevant to affect the title. Overruled, and exception.
We think it quite clear that Williams' title could not be affected by any statement made by Holland, after possession was taken by Williams, in disparagement of such title. In Bump. Fraud. Conv. 587, it is said: That part of the above quotation referring to the matter of the production of the debtor as a witness is followed by the citation of Borland v. Mayo, 8 Ala. 104; Venable v. Bank, 2 Pet. 107; and Knight v. Forward, 63 Barb. 311. We have carefully examined these cases, and are convinced that the cases of Borland v. Mayo and Venable v. Bank are not in point. Knight v. Forward is a case quite similar to the one at bar, in some respects. The action was in trover, for the value of a cutter, sulky, harness, and cow. The answer was a general denial. The property in dispute had been levied upon by virtue of an execution, and sold. It appeared upon the trial that a bill of sale of the property in question, and other property, was made and delivered by the judgment debtor to the plaintiff in that action, in payment of a note given by the debtor to another party, and which was then held by the plaintiff. The debtor was a witness to prove the transfer, when he was asked, on cross-examination, whether he had not at a certain time subsequent to the alleged transfer offered to sell the harness and cutter in question to the defendant in the action as his (witness') property. This was objected to, and the objection was sustained. The supreme court held the action of the trial court, in sustaining this objection, to be erroneous. It is said that such declarations were not competent to impair and destroy the title of the plaintiff; that they were utterly incompetent on the merits of the controversy; that they could be used only for the purpose of affecting the credibility of the witness, either by his own answers or by the evidence of others called to show that he did make the offer mentioned in the action, should he deny it. The language of the opinion is, in some respects, unsatisfactory. It is argued at some length that the alleged offer to sell was wholly inconsistent with the truth of his testimony; that he had previously sold to another party. We quote the following from the opinion of the learned judge: What is meant by the language, “If he denied it, the answer would conclude him?” In view of the general discussion in the opinion, it is difficult to say. We cannot see that the witness would be particularly concluded by the denial, as he claimed...
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