41 Colo. 68 | Colo. | 1907
delivered the opinion of the court:
The plaintiff and appellant, being the owner of a certain flock of sheep, brought suit against the sheriff of Logan county in an action of replevin to recover the possession of the sheep and for damages for their unlawful detention. The defendant justified under an execution issued from the county court of Logan county against I. M. Johnson for the sum of about two hundred dollars. The sheep were worth about six thousand dollars. The jury returned a verdict in favor of the defendant, and further found that the value of the interest of Johnson in the sheep, at the time of the taking, was two hundred and five dollars. The judgment was for the return of the sheep, or, in the alternative, that the defendant. recover of plaintiff the sum of two hundred and five dollars; from which judgment the plaintiff appealed to the court of appeals.
The sheep were owned by the plaintiff and were delivered to Johnson and one Gooch as lessees on or
The principal controversy arises over the construction of this memorandum of agreement indorsed upon the lease. It is contended, and the court' so held, that by this agreement the interest of Johnson in the sheep was vested and determined, and that his interest was subject to the levy. It is not disputed that the interest of Johnson, to be subject to levy under execution, must be a fixed and vested interest at the time of the levy; and the defendant concedes that unless it shall be determined that J ohnson’s interest was a fixed and determinable interest, the judgment must be reversed.
Testimony was offered on the part of the defendant tending to show that at or about the time of the change of lessees a division of the sheep was made and Johnson’s interest set off to him by the lessor. This testimony the court declined to receive. In this we think the court erred. It was entirely competent, in our opinion, for the purpose of showing that during the term of the lease the interest of J ohnson had been agreed upon and determined. And if, by mutual consent, certain of the sheep were set off to J ohnson in the year 1902, in full settlement and satisfaction of the terms of the lease, then Johnson had a fixed and determinable interest which was subject to levy under execution.
The judgment is reversed. Reversed.