30 Kan. 353 | Kan. | 1883
The opinion of the court was delivered by
This was an action of replevin for two horses. The case was tried by a jury; verdict and judgment were for defendants. Plaintiff'alleges error. The plaintiff claimed title by purchase from one Mrs. E. J. Robinson, on March 7, 1881. He introduced in evidence the bill of sale, proved that the horses were delivered to him on that day, and that he had kept the possession until March 14th, when they
“It was admissible only as a declaration by the vendor of defendants, qualifying his title. Such a declaration, to become evidence, must have been made by that vendor while holding possession. A declaration before he received, as well as one after he parted with his interest, is inadmissible.”
See also the cases cited in that opinion, as well as Bump on Fraudulent Conveyances, page 548. As this testimony was erroneously received, and very likely had much weight with the jury, the error was a material one.
Error is also alleged in reference to the instructions. We shall not attempt to notice them in detail, but simply make these general comments; and preliminary thereto it will be necessary to state a few more of the facts disclosed by the testimony. J. C. Robinson and C. Bomgardner had been at one time the owners of this property as well as of some fifty-seven head of cattle which were running at large on the range south of Dodge City. They executed a bill of sale of all the property to Mrs. Robinson, the wife of J. C. Robinson, and plaintiff’s vendor. That bill of sale was executed February 1, 1881. On. February 7, she executed a bill of sale of the same property to plaintiff under an agreement, as he testified, that the horses were to be his absolutely, and that he was to
Again, the bill of sale from Mrs. Robinson to plaintiff included the cattle and the horses. He testified that the horses were sold to him absolutely; the cattle were turned over to him to be collected and sold, and the net proceeds returned to Mrs. Robinson. Whatever may have been the effect of the stipulation in respect to the cattle upon his right to hold them against the creditors of Bomgardner and Robinson, such stipulation in no manner affected his right in respect to the horses. There were really two contracts entered into between Mrs. Robinson and the plaintiff: one in respect to the horses, and one in respect to the cattle; and the fact that one bill of sale recited the conveyance of both, did not make them one contract to the extent that the stipulations respecting one class of property affected the title to the other. (Kayser v. Heavenrich, 5 Kas. 324.) It is unnecessary to go further into detail in respect to these instructions.
We might justly close this opinion here, but shall notice another matter. This case has been pending in this court since December 26, 1882. It was set for hearing at the March (1883) session, was then continued to June, and from June to July, and set for hearing on July 6. On that day it was submitted, briefs of plaintiff in error filed, and defendants in error given until July 15, to file briefs. Five days
The motion to dismiss will be overruled, the judgment reversed, and the case remanded for a new trial.