17 Kan. 571 | Kan. | 1877
The opinion of the court was delivered by
This was an action of replevin, for certain property seized on attachment by plaintiff in error in proceedings against one McCormick, and claimed by defendant in
“Every sale or conveyance of personal property, unaccompanied by an actual and continued change of possession, shall be deemed to be void, as against purchaser’s without notice, and existing or subsequent creditors, until it is shown that such sale was made in good faith, and upon sufficient consideration.”
The provisions in New York, Wisconsin, Indiana, Michigan, and Minnesota, are similar. (See Bump, Appendix.) It is claimed that this sale was unaccompanied by any change of possession, and that there was no proof that it was made in good faith, and upon sufficient consideration. The purchase was made on the 30th of December, and the seizure on the 31st. The following bill of sale was introduced in evidence :
Brookville, December 30th, 1874.
This is to certify that I have bargained, sold, and delivered to A. G! Couse, one hundred and thirty head of cattle, branded on the right shoulder (70,) also fifty tons of hay, for the consideration of $1,460. I give said A. G. Couse the privilege of feeding said cattle on my place, until the 1st day of May 1875. M. D. McCormick.
Witness, W. H. Gentry.
And the witness Gentry was called.and testified to the execution of the instrument, and the circumstances attending the transaction. Before noticing his testimony it may be well to advert to the rule which must govern a court in deciding a demurrer to the evidence. The effect of sustaining a demurrer to the evidence, is a final disposition of the case. St. Jos. & D. C. Rld. Co. v. Dryden, ante, p.278. It cannot therefore be used to deprive a party of his right to have questions of fact determined by a jury. It matters not therefore, whether the testimony which a party offers to prove a fact be absolutely conclusive, or only very weak and
“As soon as the cattle were paid for, we started out to go to McCormick’s place. Don’t recollect -what money was paid. I did not count the money handed over, but saw Couse hand over a note and some money. They looked at it, and agreed to its being right. Couse was figuring while the bill of sale was being drawn up. I examined the note. Couse called my attention to the note. It was for thirteen hundred and some odd dollars. I don’t know when the note was due. No suggestion was made as to the nature of the note. _ It was given up to McCormick. I think it was just after the bill of sale was drawn. I don’t remember whether amount mentioned included accrued interest or not, nor who it was to. It was McCormick’s note. Couse got two dollars from me to make out the money.”
The judgment will be affirmed.