15 Nev. 215 | Nev. | 1880
Lead Opinion
By the Court,
On the seventeenth of July, 1876, D. Lopez, then owner
The property was kept at work under the agreement until the eighteenth of December, 1876.
There was testimony tending to, show, that the net earnings of the train were nearly or quite enough to pay the respective claims of Davis Bros. & Co. and respondent, while, according to other testimony, it did not earn its expenses.
On the ninth day of October, 1876, J. N. Winter brought suit in justice’s court, Douglas county, Nevada, against D. Lopez, and in that case, the sheriff certified in his return upon the writ of attachment, that he had attached “eleven head of mules, and the harness and fixtures thereto belonging” (including property in dispute), “as the property of the within-named defendant (D. Lopez), and placed Buck Davis (W. T. Davis), as keeper of the same, October 11, 1876.” On the eighteenth day of December, 1876, the mules and packing apparatus were brought to Carson and put on a ranch owned by respondent, where the mules remained until the twenty-third day of December, when they were levied on, and afterwards sold, by appellant, as sheriff of Ormsby county, under an execution issued in the case of Winter v. Lopez. Lopez claimed to have placed them upon the ranch, while respondent testified that they were put there by his order. On the twenty-second day of December, when the mules were upon the ranch, and the day before appellant’s levy under the execution, W. T. Davis, by
This action was brought to recover the property sold under execution issued upon the Winter judgment, or its value. Despondent recovered judgment in the court below, and this appeal is from that judgment and the order overruling appellant’s motion for a new trial.
Upon many important issues the evidence was very conflicting. Plaintiff claimed that the property was delivered to Davis upon the execution of the bill of sale by Lopez, to be used under plaintiff’s direction, and that it was so used, and the possession thereof retained by Davis and himself, under the bill of sale, until it was levied on by defendant under Winter’s execution, and, consequently, that plaintiff’s rights under the cliattel mortgage were superior to the rights of Winter under the attachment and execution.
On the contrary, defendant claimed, that subsequent to the date of the bill of sale, and at the time of the attachment, Lopez had the custody and control of the property, and therefore, that Winter acquired a prior lien by his attachment; that Davis was appointed sheriff’s keeper, and consented to act as such; that Lopez continued, with the
It is urged by counsel for respondent, that Winter acquired no lien by attachment, because the affidavit and undertaking were not in conformity with the statute. If it be true that those instruments were faulty, and if we could consider any errors besides those committed against appellant, still we are of opinion that respondent can not, in this action, question the regularity of the proceedings in attachment, although it may be true that Lopez might have done so in his action. There was an affidavit and an undertaking, whether they were .sufficient under the statute or not, and it is not claimed that the demand of Winter was fraudulent. (Drake on Attach., sec. 273, and authorities there cited; Dixey v. Pollock, 8 Cal. 573; M’Comb v. Reed, 28 Id. 285; Morgan v. Avery, 7 Barb. 657.) Despondent claims, also, that the court erred in striking out certain testimony in relation to the manner of making the levy under the writ of attachment. We are only called upon to examine errors assigned by appellant. (Maher v. Swift, 14 Nev. 324.)
The verdict of the jury was general and in favor of respondent, but it is impossible to know whether it was based upon a conclusion that possession of the property was taken by Davis and thereafter retained through himself and competent agents, under the bill of sale, and, consequently, that Winter’s lien was subordinate to the rights of respondent; or upon the conclusion that the possession had. not been taken and retained by Davis, and hence that the property was subject to attachment by bona fide creditors of Lopez, and, consequently, that Winter obtained a prior lien, but lost it before the assignment of the bill of sale to respondent, by reason of failure on the part of the sheriff, or his keeper, to retain it in custody. Under the testimony and instructions the jury may have found for respondent upon the latter conclusioú as well as the first. We must presume-that the attachment was valid, nothing to the contrary ap
It is also true, generally, that as to bona fide purchasers and mortgagees, an officer who attaches personal property must take and retain possession and control of the same. He may do so by himself in person, or by another. Unless-authorized by special statute, or by the consent of bona fide purchasers and mortgagees, he can not, so far as the latter are concerned, appoint the debtor as his keeper, without dissolving the attachment; and for the purposes of this case,, it may be admitted that, as to bona fide purchasers and mortgagees, without their consent, neither he nor his keeper can permit the property attached to remain in the custody and
In the first place, as before stated, there was no proof that, prior to appellant’s levy under the execution, respondent paid anything for the assignment, except the recital and receipts therein, that the consideration therefor was five hundred dollars, which sum had been paid. And admitting that the bill of sale, although intended as a mortgage, vested the legal title to the property in Davis, and therefore, at the time of the attachment, as between himself and Lopez, that he held more than a mere equity, still, in order to entitle respondent to the character of a bona fide purchaser without notice, he must have acquired the legal title and have actually paid the purchase money before receiving notice. (Kerr on Fraud and Mistake, 318.)
“ The rule that a man who advances money bona fide and without notice, will be protected in equity, applies equally to real estate, chattels, and personal estate.” (Id. 313.)
“ The purchase must be made in good faith, for a valuable consideration, and the purchase price must be wholly paid and the conveyance of the legal title received before notice. The purchaser of an equity is bound to take notice of a prior equity.” (2 Story’s Eq. Jur., secs. 1502, 1232; 2 Lead. Gas. in Eq., part 1, 36, 73.)
“The purchaser is not protected if he have notice before the execution of the deed and payment of the purchase money, for until then the transaction is not complete.” (Union Canal Co. v. Young, 1 Whart. 432; see, also, Jackson v. Summerville, 13 Pa. St. 359; Story Eq. Pl., sec. 604, a.)
“The rule proceeds upon the ground that, as the purchaser is taking the transfer of a title which defeats the
The onus of proving payment was upon respondent, and the receipt or recital in the assignment was not evidence of payment against Winter, a stranger to the transaction. (Bolton v. Johns, 5 Pa. St. 151; Lloyd v. Lynch, 28 Id. 425; Union Canal Co. v. Young, 1 Whart. (Pa.) 432.)
Again, although respondent had an equitable interest in the bill of sale from Lopez to Davis, before the assignment, as well as in the property in dispute, still, that interest was, by the attachment, subjected to the prior lien of Winter. By the assignment, the interest of Davis only was transferred, and that, as to him, was burdened with the prior attachment lien. He could not assign, nor did he undertake to assign, any interest beyond what he possessed.
In Wright v. Levy, 12 Cal. 257, the facts were as follows: Levy executed and delivered a promissory note to Newmark. The note was given without consideration, and for the purpose of defrauding the creditors of Levy. Newmark was aware of the fraud and participated in it. Subsequently Newmark sued out an attachment upon his note and levied upon the property of Levy. . After Newmark’s levy, Wright and others, creditors of' Levy, also levied upon the same property. After Wright’s levy, and pending the suit of Newmark, the latter sold and assigned, for a valuable consideration, the note executed by Levy, together with the action then pending, to defendant Jones, who was an innocent purchaser, and knew nothing of the fraudulent intent of Newmark and Levy. Judgment was obtained in each case, and thereupon Wright and other creditors filed a bill against Levy, Jones, and others, setting up the fraud, and praying that plaintiff might be adjudged entitled to the
The supreme court said: " It uow appears that after New-mark’s attachment was levied, the plaintiff got out an attachment on his debt, and it ivas levied on the same property as Newmark’s; and that pending these attachments, and before judgment, Newmark assigned the note and lawsuit to the defendant Jones. It is found by the court that this note, attachment, etc., of Newmark, were fraudulent, but that the fraud was not known to Jones, Avho bought for value. The question then comes up, Avhether Jones is protected in his purchase? We think, on this hypothesis of fact, he is not. Newmark’s proceedings were all void against the plaintiff. The plaintiff, by his levy, took the property subject only to' the superior rights, or the claim, of New-mark. He had, under the assumed facts, the real title as against Newmark. In this condition Jones buys, but Jones has only the right Newmark had. Newmark having been, in fact, superseded by plaintiff, could not, by any deed or act of his, put his assignee in any better position. The question is not as to the equities of third persons; the question is as to the relative equities of Jones and Wright; and it seems Wright has, as against Jones, the oldest equity and the legal title. While the property was legally subject to his claim, Wright subjected it to his attachment; his title then vested, so to speak. No act of Newmark, subsequently, could divest it. All this is said on the assumption of the fraud of the Newmark proceedings; for the effect of that fraud, unquestionably, is to make those proceedings nullities as against Wright. When they Avere nullities, Wright levied on the property, and, of course, his title dating from the levy, is superior to Jones’ title, dating from the assignment to him by Newmark. None of the authorities cited by respondent’s counsel apply to such a case as this. * * '*
It is true that the case in 18 Johns. (Anderson v. Roberts, 531) only holds that after a sale on execution of real estate fraudulently conveyed, the sale being made of it as the property of the fraudulent grantor, an innocent grantor
As in that case the proceedings were all void against Wright, an attaching creditor of Levy, by reason of the fraud, so in this, upon the hypothesis assumed, the bill of sale was fraudulent and void against Winter, by reason of failure to retain possession by Davis, and by the attachment, the sheriff, as trustee for Winter, acquired a special property in the articles attached, which could not be taken away by any act of Davis. (See Hetherington v. Hayden, 11 Iowa, 340-341.)
Besides, as before stated, by the terms of the assignment itself, Davis only “ sold, transferred, assigned, and set over ” to respondent his “ right, title, and interest ” in and to the bill of sale, with power to enforce the same according to its tenor.
In Morse v. Godfrey, 3 Story, 391, it is said: “But there is another ground, independent of this, and quite decisive against the bank. It is this: that the very deed of transfer, by its terms, purports to ‘sell, assign, transfer and set over ’ to the bank, all the right, title, and interest of Godfrey in and to the stock in the store, derived from the mortgage of Beed, and it contains no covenants whatsoever as to the title or otherwise. So that, it is a mere naked conveyance to the bank of the very right, title, and interest which Godfrey derived from the mortgage of Beed, and nothing more. The bank, therefore, took nothing but the ‘ right, title, and interest ’ of Godfrey, subject to all its original infirmities, and can now claim under it nothing which
The foregoing is based, of course, upon the assumption that the jury may have found for respondent, under the instructions, upon the ground that the attachment lien, although valid and creating prior rights in favor of Winter, was subsequently lost by reason of the sheriff’s failure to retain its custody and control. Proceeding upon the same assumption, it becomes necessary to examine some of the instructions given for respondent.
The fourth instruction informed the jury that, “where personal property is sold or mortgaged, and the purchaser or mortgagee gets the possession of such property at any time after the sale or mortgaging, but before the levy of an attachment or execution, such delivery or getting of possession before such levy will be sufficient under the statute of frauds, and render such sale or contract of mortgage valid as against such levy of attachment or execution.”
The language of the instruction quoted was used, substantially, and adopted as correct, in Clute v. Steele, 6 Nev. 335, and, in that case, was entirely correct; for there the only question was, as to the meaning of the words “ imme
The sixth instruction was based upon the hypothesis, that the respondent had the actual possession of the property from and after the execution of the bill of sale by Lopez, and that he was the agent of Davis.
The seventh instruction was as follows: “It is as essential that an officer levying a writ of attachment should actually retain actual possession and custody of the property attached, as that he should take the possession and custody at the time of the levy, and if the officer levying the writ of attachment, surrender or by any means lose, whether by design, or negligence, or accident, the actual possession and custody of such property, then other attaching creditors or purchasers or mortgagees in good faith for value, may acquire possession of the same, unless such person be in the possession as keeper, and such possession will hold against such attachment, and in the case of a purchaser or mortgagee, against any subsequent levy by attachment or execution.” It is difficult to say what was intended by that instruction. Still, the jury might well have understood it as instructing them that, if the sheriff surrendered, or by any means lost, the adual custody, whether by the design of Davis or otherwise, yet if respondent was an assignee of
In the first place, there was no proof that respondent was a tona fide purchaser for value, as before stated, and it was error to instruct the jury as -though he was such. In the second place, as to Davis, the sheriff’s constructive possession was not lost, because the property was all the time in the custody of some agent of Davis, by his consent. So far as Davis was concerned, the sheriff had constructive possession all the time, for there was no testimony that Davis ever resigned his position, or asked to be, or was, released from his responsibility, and his possession as keeper was the possession of the sheriff. (Drake on Attach., sec. 431.)
The jury were told that it was 'as necessary that the officer levying the toril should actually retain the actual possession as that he should take possession at the time of the levy. Now, it was not necessary that the sheriff should retain the actual possession. Constructive possession by a keeper was all that the law required.
“ An indispensable element of the continued existence of the lien is the officer’s continued possession of the property, actual or constructive, that is, personally or by another.” (Drake on Attach., sec. 350.)
The seventh instruction was misleading and erroneous.
Following is the ninth instruction: “If the jury believe from the evidence that Damacio Lopez sold or mortgaged the property in controversy to W. T. Davis, and that the said Davis, or his assignee, or vendee, got lawful possession of said property, either at the ranch of Moresi in Ormsby county or elsewhere, and that such possession was acquired peaceably and fairly and legally at any time before the actual levy of the execution in the hands of defendant Swift, and if the jury further believe from the evidence that there was a contract of mortgage between Lopez and W. T. Davis, to secure debts from said Lopez to said Davis and Moresi, or either of them, and that said indebtedness is still unsatisfied in whole or in part, then the jury should find for the plaintiff.”
The possession of Davis or Moresi was “lawful,” and it was “peaceably, fairly, and legally acquired,” although Davis was keeper and Moresi his agent; but if Winter acquired a prior lien, and Davis was appointed and acted as keeper and Moresi as the keeper’s agent, it is not true, for the reasons before stated, that fair, peaceable, and lawful possession by Davis or Moresi, at any time before levyunder execution, necessarily entitled respondent to recover.
The tenth instruction was given upon the hypothesis that Lopez had the actual possession from and after the execution of the bill of sale, as claimed by appellant, and was as follows: “If the jury believe, from the evidence, that Damacio Lopez had actual possession and control of the pack train and property in controversy from and after the alleged execution of the bill of sale or chattel mortgage from him to W. T. Davis, * * * and that Moresi or W. T. Davis paid the expenses of running the pack train and received the benefit of the earnings of said train in the discharge of any debt of said Lopez to Davis and Moresi, or either of them; still the jury should find for plaintiff if they further find, from the evidence, that any portion of such debts from Lopez to Davis or Moresi was unsatisfied, and that afterwards, but not as keeper, Davis or his assignee, Moresi, had gotten lawful possession of such property, at any time before the levy of the execution by Swift, whether possession was acquired at the ranch of Moresi or elsewhere.”
By the twelfth instruction the jury were advised that, “a party in possession of land is presumed to be in possession of the personal property thereon until the contrary is shown.” In brief, the jury were instructed that respondent could recover if he got lawful possession from Lopez at any
The judgment and order appealed from are reversed, and the cause remanded.
Dissenting Opinion
dissenting:
There were two theories, upon either of -which, the respondent claimed that he was entitled to recover a verdict.
First, upon the ground that at the time of the pretended levy of the attachment, and for a long time prior thereto, W. T. Davis & Co., as mortgagees, had the actual, open, and notorious possession of the property in controversy, and that the attachment, if levied, was subject to their rights as mortgagees. Second, that if there was a valid attachment,
Upon the first point, as to the possession of the property,' prior to the attachment, there Avas a substantial conflict of evidence sufficient to have sustained a verdict on either side.
Appellant, to prove the levy of the attachment and the appointment of W. T. Davis, as keeper, relied upon the sheriff’s return to the Avrit of attachment.
Despondent sought to shoAv by the testimony of the sheriff that the attachment Avas levied, if at all, subject to the rights of the mortgagees, and that the appointment of Davis, as keeper, Avas made subject to his claim as a mortgagee; but this evidence Avas erroneously excluded by the court. The respondent claimed, in the first instance, that the testimony submitted-upon his part, if believed, entitled him to a verdict. Second, that if the jury disbelieved his side of the story, and believed appellant’s Avitnesses, then the same result Avould inevitably follow, because it affirmatively appeared therefrom that if there was any valid attachment (Avhich respondent continually denied), it was lost by a failure upon the part of the attaching officer to keep the custody and control of the property. It is upon the latter theory that the instructions complained of were given. The return of the officer does not shoAv, or tend to show, that the property attached thereafter remained in the possession of the sheriff or his keeper. There is no testimony that Davis, as keeper, turned over the possession of the property to Lopez, or to anybody else. There is no testimony that the lien of the attachment (if any ever existed) Avas lost by any act or agency of Davis, as keeper.
Lopez testified that he had the custody and control of the property after, asAvell as before, the levy of the attachment; that he ordered the nmles brought doAvn, and directed that they should be put upon the ranch oAvned by Moresi.
If Moresi obtained the possession by any illegal, forcible, or fraudulent means, or through any act or agency upon the part of Davis, as keeper, he Avould, of course, be estopped from claiming any benefit on account of such possession.
It may be admitted that some of the instructions given upon this point were, standing alone, calculated to mislead the jury; but when they are, as they should be, taken as a whole and construed together with reference to the particular facts and circumstances testified to in this case, I do not think the jury could have been misled upon the real questions at issue.
If the jurors believed that W. T. Davis, in violation of his duties and of the trusts reposed in him, as keeper, allowed the property to be surrendered either to Lopez or Moresi (or anybody else), it was their duty, under the instructions upon this branch of the case, to have found in favor of appellant.
The instructions (taken together as before stated) properly left the questions of fact for the jury to decide whether the lien of the attachment (if valid) was kept good, or whether it was lost by a failure upon the part of the sheriff to keep the possession ; and if lost, whether Moresi, without any fraudulent or illegal means on his part, or any act upon the part of Davis, as keeper, legally came into the possession of the property, and had the rightful possession of it at the time of the levy of the execution.
There was sufficient testimony upon these points to sustain a verdict in respondent’s favor.
Davis & Co. were Iona fide, mortgagees, and if the lien of the attachment was lost (through no agency of W. T. Davis, as keeper), they had the unquestioned legal right to sell and dispose of their interest in the property to Moresi.
The only objection urged to the fourteenth instruction is the omission to insert the word “ material.” Appellant has failed to point out any immaterial matter testified to by any
In my opinion, the judgment of the district court ought to be affirmed.