Couch v. Montgomery, 59 P. 16

Couch v. Montgomery

59 P. 16 | Idaho | 1899

Lead Opinion

HUSTON, C. J.

— Plaintiff brought suit against defendant to recover the value of eight head of cattle alleged to have been converted by defendant. Defendant denied ownership or right of possession of plaintiff to the cattle, and averred ownership in himself. The case was tried before the district court, with a jury, and verdict rendered for the defendant. From the judgment entered upon the verdict, and from the order denying plaintiff's motion for a new trial, the plaintiff appeals.

The facts in the case, as they appear from the record, are about as follows: On the twenty-eighth day of September, 1897, one Sam Smith sold to one E. C. Través a bunch of cattle, for a stipulated price per head. On or about October 10, 1897, sixty-one head of the cattle so sold by Smith to Través were delivered to Través at a point on'the Kootenai river, as per agreement. After such delivery by Smith to Través, the defendant purchased eleven head of said cattle, which were segregated from the rest of the cattle purchased by Través, and driven away by defendant to the premises of his brother, some three or four miles from the place of delivery, and there left by defendant. The balance of the cattle purchased by Través of Smith were taken by Través across the river to British Columbia. It would! seem that some dispute arose subsequently between Smith and Través touching the sale between them, and Smith thereupon went and took possession of the eleven head of cattle purchased by defendant of Través, and drove them to his (Smith's) own ranch, and held them, against the protest and demand of the defendant, until about the last of March or the first of April, 1898, when he sold them to the plaintiff, who took them to British Columbia, where they were replevied by the defendant, and are still held by him. There is no question of the Iona fides of the purchase either of the plaintiff or defendant; but appellant contends that the sale from Través to the defendant not having been followed by an immediate delivery and an actual and continued change of possession, such sale was void, as against the plaintiff, under the provisions of section 3021 of *672the Bevised Statutes of Idaho. We are not in accord with appellant’s construction of the statute. It is evident from the record that after the purchase of the cattle by-Través from Smith, and the delivery of the same to Través, and the payment therefor by Través, he (Través) sold and delivered to respondent eleven head of said cattle, and that respondent paid for them; that there was an actual delivery of the cattle so purchased by respondent; that respondent took the same into his possession, and removed them to the ranch of his brother; that subsequently, and without the knowledge or consent of respondent, Smith took said cattle from the possession of respondent and sold them to plaintiff. Smith could acquire no title by such unlawful act; and to hold that a void title in the vendor could ripen into a good and valid title in the vendee, simply because the vendee was an innocent purchaser for value, is absurd. There was an actual delivery, and the possession of respondent would have been “continuous,” but for the unlawful acts of Smith. The statute was not intended to aid or cover frauds, but to prevent fraud. There is not anything in the record showing, nor do we understand it is contended, that there was any privity of interest between Smith and respondent, or that respondent ever acquiesced in or consented to the acts of Smith in taking and holding possession of the cattle. There is some conflict of evidence upon immaterial matters, but the weight of the evidence sustains the facts as we have herein given them; and, the jury having so found, their conclusion will not be disturbed.

There are various and numerous assignments of error by appellant, going to the admission of testimony and the instructions to the jury. We have examined them with considerable care, but we can find nothing in them warranting a reversal. The instructions given by the court we think state the law correctly, and are fully as favorable to appellant as the case would warrant, and we find nothing contradictory therein. Finding no reversible error in the record, the judgment of the district court is affirmed, with costs to respondent.

Quarles and Sullivan, J J., concur. (November 28, 1899.)

Rehearing

ON REHEARING.

Per CURIAM.

— Appellant has filed a petition for rehearing, which we have carefully examined. We find no question of law or fact in the petition which we did not consider on the hearing. No reason being shown why a rehearing should be granted, the petition therefor is denied.