7 Mont. 121 | Mont. | 1887
Lead Opinion
The opinion states the case.
In this case, the court, sitting instead of a jury, gave judgment for defendants. A motion for a new trial was made and overruled; and from the order overruling the motion for a new trial, and the judgment, the plaintiff below appeals to this court. This is a ease of sale and delivery, under section 169, page 436, Revised Statutes of Montana.
The court made fifteen special findings: “1. Defendant Elling, ever since 1880, has been a creditor of James and Robert Kirkpatrick; 2. Defendant Elling, in October, 1885, reduced his claim against said James and Robert Kirkpatrick to a judgment; 3. Said judgment is still unpaid to the amount of $2,985; 4. That in October, 1881, said James and Robert Kirkpatrick sold to plaintiff Lydia C. Dodge twenty head of horses and mares; and that the said horses and mares thus sold, and their offspring, are the same property mentioned in the complaint; 5. That the plaintiff and Robert Kirkpatrick went into the corral of Kirkpatricks, and the twenty head were pointed out to her; 6. That the Kirkpatricks owned a large band of horses branded ‘K’ on left shoulder, and those sold to plaintiff had this brand on them; 7. That the horses bought by plaintiff were turned out on the range with the rest of Kirkpatricks’ horses, and continued to run with them until the sheriff levied on them in July, 1886; 8. That James and Robert Kirkpatrick have at all times, and continuously, had the care, control, and use of said horses, ever since plaintiff
There is no controversy but that the appellant bought the twenty head of horses from James and Robert Kirkpatrick, in October, 1881, and paid twelve hundred dollars for them, and that this was done in perfect good, faith. It is equally admitted that respondent Elling was the creditor of James and Robert'Kirkpatrick in 1880; that in -1885 he put his claim into a judgment, and in July, 1886, had an execution issued, and levied upon the twenty horses sold to the appellant in 1881, and the increase thereform, amounting to twenty more; and the only question is, Was the sale made by the Kirkpatricks to the appellant void under the above statute, for the want of an immediate delivery, followed by an actual and continued change of possession, as required by said statute? Said section 169, page 436, Revised Statutes of Montana, is as follows, to wit: “ Every sale made by a vendor of goods and chattels in his possession, or under his control, .... unless the same be accompanied by the immediate delivery, and followed by an actual and continued change of posses, sion, of the thing sold and assigned, shall be conclusive.
No particular act or formal ceremony is necessary to make a delivery in law. Any act done, coupled with the intent to change the ownership, which has the effect to transfer the dominion over the thing sold to the buyer, is a delivery. Any small chattel capable of being handled may be delivered by handing it to the buyer, as selling goods across the counter in a store; but horses are not capable of this manual kind of delivery. We think when the bar was branded under the “K,” so that the appellant’s horses could be distinguished from those of the Kirkpatricks, and they were turned out on the range, those acts were done with the intent to transfer the ownership and dominion over these horses to the appellant. When they were on the range, the actual possession was in no one. The range was common pasturage for everybody, and the constructive possession accompanies the title, and was in the appellant. What more could have been done to constitute a delivery? The law does not require a proclamation of delivery to be made, nor that these horses should be temporarily sep
But as we are construing the statute of- frauds* above referred to, perhaps it would be well to further notice the term “ delivery,” as used in the authorities. It is sometimes used to denote the transfer of title. Upon the subject of constructive possession, Wait, in his Actions and Defenses (volume 5,.p. 574), says: “A sale of personal property must, in general, be accompanied by a change of possession of the thing sold.. The law, however, does not require the parties to a sale to perform ,aqts extremely inconvenient, if not impossible, but accomodates itself to their business, and the nature of their property; and therefore, as some kinds of property are not susceptible - of immediate manual delivery, the- law requires only such, deli very and change of possession as the nature of the property will allow [citing Long v.
But it is needless to multiply authorities on this subject. The facts found and admitted are: 1. Sale of the horses to appellant by James and Robert Kirkpatrick; 2. Price paid, and bill of sale executed and delivered; 3. Bar branded under letter “K” on horses sold; 4. Turned out of corral of vendors upon the “ range ”; 5. They were range horses; 6. All this done within one hour. We hold that this constitutes an immediate delivery and actual change of possession.
The court below found that James and Robert Kirkpatrick have at all times, and continuously, had the care, control, and use of said horses, ever since plaintiff claims to have bought them. The appellant, in her assigment of errors, says that this finding is not justified by the evidence, and is against the law. The statute provides that this change must be “actual and continued.”
But before doing this, it is necessary to construe the meaning of the words “continued change.” Does it mean that the chattel sold shall never again come into the possession of the vendor without being subject to seizure for his debts ? Certainly not. If this was the correct meaning of it, the law would soon stop the whole machinery of trade, and no one would dare to let his vendor have the possession, ever so short a time, of any chattel he may have obtained from him. The purpose of the statute was to prevent fraudulent and colorable sales, made to hinder and delay creditors, in which the vendor never parts with the thing sold, or if he does, it is only for a short time, when it is returned to him, and he continues to use and enjoy it. Hence the statute provides that there shall be an “ immediate ” delivery, and there shall be an “ actual ” change of possession, and this change shall be a “ continued ” one. But continued how long? We think for a reasonable length of time, — such a length of time as will, preclude the idea that- the sale is a colorable one. To give this statute any other construction would be to convert its
In the case of Stevens v. Irwin, 15 Cal. 503, the supreme court of the state of California, in construing their statue of frauds, which is identical with ours (Mr. Justice Baldwin delivering the opinion of the court), said: “ In this controversy as to what the true common-law rule is, the legislature wisely adopted, by statute, the construction given by the supreme court of the United States; for this course had at least the advantage of giving to the state one uniform rule in all courts on this important subject. But we apprehend that the legislature never intended, by this statute, to go beyond the extreme rule adopted by the supreme court of the United States, and the English cases on which that rule rests. There was no reason of policy for such extension; indeed, such extension might defeat, in some degree, the reason for adopting the federal rule. The rule, as defined by our statute, is almost in the language of that given in the cases which establish the rule in England. It is true that some stress is laid on the words ‘ actual and continued change of possession'; but these words are suggested by the facts and principles of the decided cases referred to. The word ‘ actual' was designed to exclude the idea of a mere formal change of possession, and the word ‘ continued,’ to exclude the idea of a mere temporary change. But it never was the design of the statute to give such extension of meaning to this phrase, * continued change of possession,’ as to require, upon a penalty of a forfeiture of the goods, that the vendor should never have any control over or use of them. This construction, if made without exception, would lead to very unjust and very absurd results. The vendor would never become trustee of the goods without their being forfeited or liable for his debts. If a livery-stable keeper hired a horse to the original vendor, it would be
This case is referred to and approved by Sanderson, C. J., in the case of Godchaux v. Mulford, 26 Cal. 325.
If Robert Kirkpatrick merely had the charge of the horses after they were sold, as an agent, and held them ope.nly in that capacity, it may well be doubted whether that would bring the case within the prohibition of the statute, which says the change of possession must be continued. In the case in 26 California, already cited, the court, discussing the effect of putting the vendor in possession of a stock of goods, to sell them as a clerk, says: “Such employment is undoubtedly a strong circumstance tending to show that there has not been such an actual change as the statute requires; but it is not per se a fraud which admits of no explanation. As is
Now, let us see what evidence there is to support the finding of the court below, that the possession remained with the vendors of the appellant. She says she left the horses in charge of the Kirkpatricks, and went to Santa Barbara, California, to spend the winter. The horses
Robert Kirkpatrick testified: “The horses were sold to Miss Dodge in 1881. At the time of the purchase by her they were in a corral. They were branded ‘ K ’ on the left slioulder; vented them by putting a bar under the ‘ K.’ In the spring of 1882, I got up some of the horses with our brand on them. During the years 1882, 1883, and part of 1884, I had charge of the horses. We put the ‘apple’ brand on the horses in 1884- "Monroe Mann gave us contract to breed the mares to the stallions. Know the gray mare; used her. Do not remember of using or working more than one of the horses. Allen Black broke a five-year-old horse, at my request, in the spring of 1886. They were range horses, — stock horses. In 1884 Monroe Mann was the agent of Miss Dodge, and I had charge of the horses under Mann’s direction.”
Mr. Jones testified that the horses were in charge of the Kirkpatricks from the date of the sale, or assignment, which they made of their own stock, which was in 1883.
1. We find then, that, as a matter of law, from the facts found by the court, with the additional facts which are admitted, there was an immediate delivery at the time of the sale, and that the court, in concluding there was not, from the facts found and admitted in argument before us, was in error.
2. The court erred in finding that there was not a change of possession, when he found the fact that the horses were turned out of the corral of the Kirkpatricks on the “ range.”
3. The court below, in its findings, having erroneously concluded that there was no delivery, and no change of possession, necessarily could not have considered whether an interval occurred between the severance of the possession of the Kirkpatricks and the time when they regained the possession, if they did regain it at all. If there was a continued change of possession for a reasonable length of time, then they might retake the possession, as the agents of the appellant, .without being obnoxious to the statute of frauds. The question as to whether there was a regaining of the possession, and if so, when it took place, and the nature of it, and whether it was a reasonable time after the actual change of possession had taken place, as well as what would be a
' Let the case be reversed, and remanded for a new trial, under the principles set forth in this opinion
Dissenting Opinion
(dissenting). I am compelled to differ from the majority of the court in this case. The case is one of peculiar hardship, for there is no question of fraudulent intent, or fraud in fact; still, in my view of the evidence, it is a case which is governed by the statute concerning fraudulent conveyances, as passed by the legislature of this territory, which, wisely determining to avoid the conflicting authorities upon this question, declared that the presumption of fraud was conclusive, as to creditors and purchasers in good faith, when a sale of personal property was not followed by an imo mediate delivery, and an actual and continued change of possession.
While I do not dispute the rules of law stated in the prevailing opinion, I doubt that they control this case. There cannot always be a manual delivery, or personal and definite possession, of property. The very nature of certain classes of property prevents that; and there can be no force in the rule of law that would seek to forbid the vendor from ever having the possession of the property, even as the agent of the vendee, or as his bailee for hire. But the delivery of the property, however indefinite it may be, must be a delivery to the vendee, and must be a breaking of the possession of the vendee, and must be a breaking up of the possession of the vendor; and the possession (to quote the opinion cited by the learned chief justice in Godchaux v. Mulford) “must be continuous; not taken to be surrendered back again; not formal, but substantial.” In this case there
It is my opinion that the testimony of the plaintiff shows that there was no actual, “substantial” change of possession or immediate delivery of the property. That testimony is brief, and is as follows, in full: —
“Am plaintiff in this action. Know the property described in the complaint. Bought it in the fall of 1881. Took a bill of sale of it, and had it in my possession. The signature of it is in the handwriting of* Robert Kirkpatrick. I paid twelve hundred dollars for the property. Bought the horses of the Kirkpatricks. At the time I bought them they were driven into a corral with a lot of other horses. The horses I bought were shown to me; the price for each one named. I took those which suited me, and they were then driven or turned out on the range near by within an hour afterwards. Left the horses in charge of the Kirkpatricks, and went to Santa Barbara, ^ California, to spend the winter. The horses' were cared for by the Kirkpatricks up to some time in 1884. In that year I received a letter from the Kirkpatricks, informing me that they were intending to make an assignment for the benefit of their creditors, and that there might be danger to my horses, as they were not then branded. I then had them branded with the ‘ apple ’ brand which my sister had caused to be made for me. After that I made Mr. Monroe Mann my agent to look after my horses, but he was not prepared to take
Lf there was a substantial change of possession, as evidenced by the statement of the plaintiff, it would be difficult to imagine any case which would come within the statute relating to fraudulent conveyances. The learned chief justice cites with approval the following: “ The delivery must be made of the property; the vendee must take actual possession; that possession must 'be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee.” In this case, was the possession “unequivocal, carrying with it the usual marks and indications of ownership by the vendee”?
There never was any delivery of any kind. The vendee never had the horses in her actual possession for one moment, and the constructive possession by the vendee, if any there was, cannot be called a “’substantial ” or “ unequivocal ” possession; it was “taken merely to be surrendered back again.” The horses were in the possession of the vendor before they were driven to the corral; they were in his possession in the corral; they were driven out of the corral;, and, in the words of the
So much for the possession. What change was there which would “give evidence to the world of the claim of the new' owner”? 'They were in the care and control of the vendor; they were on the same range that they had occupied before the sale (which in this country is no slight evidence); they were never out of the possession of their former owner. The only circumstance evidencing a change was the addition of the bar to the “K” brand. This was not the “usual mark of ownership of the vendee ”; and it did not “ give evidence to the world of the claims of the new owner.” The brand “K” writh a straight bar was the brand of no one. It was certainly not the brand of the plaintiff. Her brand was the “apple” brand. It was not even venting of the vendors’ brand, which might have been prima facie evidence of a change of ownership, and thus, perhaps, notice to the world “ of the claims of the new owner.” Section 113, page 426, Revised Statutes of Montana, provides that the venting of “ such original brand shall be prima facie evidence of sale or transfer”; and that section provides what shall be considered a “vent brand”; and the straight bar is not one of the modes of venting an original brand. It is true, the plaintiff testifies that she did not have the horses branded, because she thought it very cruel to do so; but it is doubtful that such a tender sentiment would excuse the performance of an act which, in this country, would be some evidence of the “ claims of the new owner,” especially when that sentiment did not prevent her from assenting to the branding with the straight bar at the time of the sale, or to the branding with the “apple” brand when she was warned of the assignment by the vendors for the benefit of their creditors.
To briefly state the points I would make: I am of
The learned chief justice cites as authority the case of Warner v. Carlton, 22 Ill. 415. In that case the court say (page 424): “If the vendor, after the sale without
The case of Sutton v. Ballou, 46 Iowa, 518, is also cited in the prevailing opinion as authority therefor. The following statement of facts is taken from the opinion of Day, C. J.: “The evidence tends to show that, before the contract of purchase was made, the cattle had been separated from O’Harra’s, the vendor’s, other cattle on the range, by his son, and driven about a mile. After the plaintiff bought them, they were driven twenty or thirty rods on the range, and then plaintiff hired O’Harra’s boy, through his father, to herd them. After that these cattle remained with others owned by O’Harra, and were herded on the prairie, sometimes by this boy and sometimes by O’Harra’s other children. The cattle went into a bunch together, were driven up at night by the boy, and O’Harra frequently went out in the morning to look after them. No change was observable in the manner of keeping the cattle until O’Harra left, about the last of July.” The learned chief justice of this courts is mistaken when he says that the Iowa court held the sale valid as against, creditors. The jury had held the
The case of Brown v. Wade, 42 Iowa) 647, is also cited. There was no question of a fraudulent sale in that case; there was no creditor interested in the action. The point in that case was whether or not there had been such a delivery as to take the contract of sale out of that section of the statute of frauds which refers to parol executory contracts. Mr. Chief Justice Day wrote the opinion in that case also; and in the subsequent case of Sutton v. Ballou, he briefly draws the distinction between delivery as between the parties under the statute of frauds, and delivery under the statute concerning fraudulent conveyances, and says (page 518): “Appellant cites and relies upon Brown v. Wade, 42 Iowa, 647. That case involved simply a question of delivery as between the parties to the contract.”
And the citation from 5 Wait on Actions and Defenses, as follows: “And in general, the ássertion of
And so in the case of Bailey v. Ogden, 3 Johns. *399, cited in the prevailing opinion of this court, and by Mr. Wait in support of his quotation from Mr. Story. That was a case between the vendor and vendee, involving the statute of frauds relating to parol executory contracts. Mr. Chief Justice Kent delivered the opinion of the court, and at the very commencement of his opinion says: “ This case depends upon the decision of two general questions: 1. Was there a note or memorandum in writing, binding upon the defendants, within the meaning of the statute of frauds? If not, then, 2. Was there a delivery of the sugars so as to change the property, and throw the risk of the subsequent loss upon the defendants?”
It remains only to consider the facts in the two cases chiefly relied upon by the learned chief justice, — Stevens v. Irwin, 15 Cal. 503, and Godchaux v. Mulford, 26 Cal. 317. The facts differ essentially from the facts of this case. In Stevens v. Irwin, it appears (see page 507) that the vendee had the exclusive possession of the property for a year or more. In Godchaux v. Mulford (page 321), the facts are stated to be as follows: “ The sale closed on December 16,1857, by the execution of a bill of sale and a lease of the store-room, from which the vendor’s sign was removed, and the vendee’s sign was placed thereon. A person by the name of Blum, who seems to have had no connection with Kraft (vendor) in any way, was employed by the plaintiffs (vendees) to take immediate possession for them. He did so take possession, and retained it until one Black was sent up by them from San Francisco, who remained there until the goods were seized by the sheriff, in February, 1858. After the sale, Kraft was absent some three weeks in San Francisco, but at the time of the levy by the sheriff, he, together with one of the plaintiffs and Blade, was in the store, and was arranging goods in a show-case. In the first case, it will be seen that the vendor did not resume possession until a year or more after the sale, during which time the vendee was in the exclusive possession. In the, second case, the vendor parted with the possession absolutely for some considerable time, parted with the building by leasing it, his sign was removed from the store and the vendee’s sign was placed thereon, and the vendor never was again in the sole and exclusive possession of the property.” These facts do not resemble those
In my opinion, therefore, the court below had some testimony upon which to base the finding that there was no immediate delivery, or actual and continued change of possession; and the judgment and order of the court below should be affirmed.