124 Cal. 200 | Cal. | 1899
This is an action in replevin against the defendant, as sheriff of the city and county of San Francisco, to recover two horses, one express wagon, and two sets of harness, or their value, found by the court to be five hundred dollars. The goods were seized by the sheriff under an execution issued upon a judgment recovered by F. W. Spencer Company against Frank O’Kane, April 18, 1893. The appeal is from the judgment in favor of the plaintiff, and from the order denying the motion for a new trial.
The plaintiff claims the property as her separate property under a deed of gift, as to the wagon, executed to her by her husband in 1880, and as to all of the property in question, under a bill of sale from her husband to her, in consideration of one dollar, executed September 7, 1892. The deed of gift of 1880 cuts no figure, for the reason that the plaintiff herself testifies that the object of the deed was to secure the property to her in the event of her husband’s death, and that he afterward recovered and carried on his business as before his sickness, in the same manner and at the same place, and used and kept the wagon in the same manner and at the same place.
The finding of the court, that the plaintiff has been for more than four years prior to the filing of the complaint in this action in the possession of the property mentioned in the complaint, is entirely unsupported by the evidence. The testimony of the plaintiff is: “On September 7, 1892, my husband executed and delivered to me a bill of sale of six horses and three wagons and certain harness. The wagon,
September 8, 1892, the plaintiff filed for record in the office of said city and county an inventory of her separate property, including therein the horses, wagon, and harness now sued for.-
“Every transfer of personal property, other than a thing in action, .... 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.” (Civ. Code, sec. 3440.) To meet this provision of the law against fraudulent conveyances, the respondent relies upon sections 165 and 166, providing for the filing of an inventory of the separate personal property of the wife. This question was directly passed upon
On the authority of that case, as well as from the fact that the finding of the court referred to is unsupported by the evidence, the judgment and order refusing a new trial are reversed.
Garoutte, J., and Harrison, J., concurred.
Hearing in Bank denied.