147 N.W. 68 | S.D. | 1914
This action was brought to' recover the possession of one certain engine and boiler, plaintiff alleging that he was entitled to such possession by virtue of ownership of such property. The defendants in their answer pleaded rightful possession under and by virtue of a levy under an execution issued upon a judgment obtained by the defendant Riley against one Potter. The cause was, upon stipulation, tried to the court without a'jury; findings, conclusions and judgment were entered in favor of plaintiff; a new trial was denied; and defendants appealed from such judgment and from the .order denying a new trial.
The only assignments of error relied upon are those challenging the sufficiency of the evidence to support certain findings of the court. Among other things, the court found that Potter was the owner of this personal property in March, 1912; that, during the latter part of that month he sold said property to plaintiff; that, on April 1st, 1912, he consummated such sale by giving plaintiff a bill of sale covering such property; that Potter relinquished his ownership and possession and all his rights in and control over the said -boiler and engine to the plaintiff; that plaintiff immediately, and in the month of March, 1912, assumed the ownership and took possession and control of said property and thereafter publicly and continually exercised ownership, control, and possession -over said property, until the same was seized by the defendant sheriff; that defendant Hewitt, on- behalf of his co-defendant, took possession of this property in October, 1912, under and by virtue of a writ of execution issued upon a judgment wherein such co-defendant was judgment creditor and Potter judgment debtor.
Appellant contends that, under the evidence, it appears that appellant Riley commenced an action against Potter on April 5, 1912, and that, in this action, an attachment was issued and, upon that date, levied upon the property in question; „that, under the evidence, it is clear that the purported sale to respondent was not entered into until after the levy of said attachment; that, even conceding such purported sale to have been made prior to the levy of such attachment, the evidence does not support any finding to the effect that plaintiff took control and publicly and continually exercised ownership, control, and possession over said property; that the evidence does show that there was no such
“§ 2369. Every transfer of personal property * * * is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of .possession of the things transferred, to. be fraudulent and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any person on whom his estate devolves in trust for the benefit of others than himself, and against purchasers and incumbrancers in good faith subsequent to the transfer.”
The judgment and order appealed from are affirmed.