60 Cal. 632 | Cal. | 1882
The transfer of the property sued for in this action, if made at all, was made by the assignee of the estate of Curtis in bankruptcy, and not by Curtis, so that at the time of the transfer it was the assignee who was in possession and had control of said property, and there is no evidence which tends to prove that he did not immediately deliver it to the purchaser, or that said sale was not followed by an actual and continued change of possession. Therefore, the transfer can not be conclusively presumed to be fraudulent, as against creditors of the bankrupt. Whether the property, at the time of the seizure of it by the defendant, was the property of the plaintiff, was a question for the jury, or for the Court sitting in place of the jury, to determine; and as we think that the evidence is conflicting, we can not disturb the finding upon that point. It was an inference of fact, and not a presumption of law, that had to be drawn from the evidence.
But we think that the Court erred in including in the judgment the sum of three hundred dollars for money expended by the plaintiff in the pursuit of said property. The action is for the recovery of the possession of personal property, and not for the conversion of it. This distinction was pointed out in Kelly v. McKibben, 54 Cal. 192.
The judgment must, therefore, be modified by deducting from it said sum of three hundred dollars, and with that modification it is affirmed.