105 Ky. 376 | Ky. Ct. App. | 1899
delivered the opinion of the court.
This action was brought by appellant against appellee, as sheriff of Nicholas county, alleging that appellee, by his deputy, had wrongfully seized and destroyed about 8,000 pounds of tobacco, under an execution against W, T. Rogers. The answer presents a general denial of each and all the allegations, both as to the ownership of appellant, the wrongful seizure, or the destruction. Upon trial the court, at the close of appellant’s evidence, gave a peremptory instruction to the jury to find for defendant, and verdict and judgment were rendered accordingly; and, after motion for a new trial had been overruled, this appeal is prosecuted. The proof of appellant and of W. T. Rogers shows that this tobacco was raised by. Rogers on the farm on which he lived, and in December or January
Section 1908, Ky. Statutes, provides: “Every voluntary alienation or charge upon personal property, unless the actual possession in good faith accompanies the same, shall t¡e void as to purchasers without notice, or any creditor, prior to the lodging for record of such transfer or charge in the office of the county court for the county where the alienor or person creating the charge resides.” This statute, this court has held, did not apply to sales of property under execution, or to property that was exempt to the
In the case of Robbins v. Oldham, 1 Duv., 28 the above was quoted with approval, and held to apply to a sale of tobacco in August, then growing, the seller to cultivate it, and deliver it by March following. The court held that the sale was not fraudulent, but x>assed the title as against an execution creditor. This same doctrine was followed by this court in the case of Cummins v. Griggs & Hays, 2 Duv., 87, [87 Am. Dec., 182]. In the latter case the tobacco was bought August 20, 1863, and was paid for on that day, but ‘was to be cut when matured, and to be matured by the seller and delivered. The tobacco was levied on 13 days after the sale under an execution. This court upheld the sale as against the execution creditor, for the reason that it could not be delivered when sold. The doctrine of these cases was recognized in the case of Morton v. Ragan, 5 Bush, 331. Upon the authority of these cases, we are of opinion that the court erred in refusing to permit appellant to prove that the tobacco could- not be delivered at the time of the contract of sale. We are alpo of oxunion that, as between the parties, the proof of appellant and Rogers shows there was a complete sale of the tobacco (Hopkins v. Combs, 19 Ky. L. R., 1165; Burke v. Shannon, 19 Ky. L. R., 1171). If it could not be delivered to appellant by reason of its condition without serious loss this sale would not be void as to creditors.
These questions of fact should have been submitted to the jury upon proper instruction from the court.
For the error in excluding the evidence referred to above