196 N.W. 104 | N.D. | 1923
This is an action to recover the value of a quantity of
Albert W. Johnson, the defendant in the attachment action, rented some land in McLean county, from the owner, a Mr. Myers, upon the crop share plan. Under contract of tenancy, J ohnson put in the crop in the spring of 1920. The crop was in due season harvested and threshed and the wheat alleged to have been converted was put into a bin on the premises. Between five and six hundred bushels of wheat were seized by the defendant under a warrant of attachment on the 27th of September, 1920, a few days after the grain was threshed. Shortly thereafter, the plaintiff, Veum, made a third party claim to the crop in the. manner provided by statute. The sheriff refused to recognize the validity of plaintiff's claim of ownership and the crop was sold and the proceeds were presumably delivered to the plaintiff in the attachment suit. Plaintiff thereupon brought this action to recover for the conversion of the grain, claiming the ownership thereof at the time, of tlie levy.
The plaintiff's claim of ownership is based upon tlie transactions which culminated in the execution and delivery to him of a bill of sale, dated June 19, 1920, of A. W. Johnson's share in the crop that was then growing upon the premises rented by J ohnson. There is evidence in the record which tends to show that Veum had advanced sums of money to J ohnson from time to time; that on the 19 th of J une, when the. bill of sale was made, Johnson was indebted to Veum to the amount of about $1,800; Veum then says that after the bill of sale was executed, he took possession of the crop and harvested the same; that he hired Johnson and other men to harvest the crop and paid for all the work himself, Johnson’s labor included. Plaintiff further testified that he paid for the threshing of the crop. The testimony of Johnson is substantially to tlie same effect. The bill of sale ivas executed and delivered for the purpose of paying or of securing the indebtedness of Johnson to the plaintiff. The plaintiff does say, on cross-examination, that the bill of
The defendant challenges the claim of the plaintiff to the ownership of the crop or to any interest therein upon the ground that the transaction between the plaintiff and Johnson was merely colorable and entirely fraudulent and that the bill of sale was executed solely for lho purpose of hindering, delaying or defrauding the creditors of Johnson ; it is claimed that both plaintiff and Johnson were parties to this scheme. The bill of sale was not filed. There, is evidence to the effect that Johnson did not live on the land he rented and on which the grain seized was grown at any time during 1920; that plaintiff himself assisted in threshing and caring for the grain; that the plaintiff received the proceeds of at least some of the wheat- and the flax which was raised on the land; that Johnson told the deputy sheriff, at the time of the levy, that he was not the owner of the crop; and that 568 bushels of wheat were' seized by the sheriff. The market value of the wheat was shown. The record shows that the debt on which the cause of action in the attachment suit was founded was contracted before the hill of sale was delivered on June 19, 1920.
The statutes relating to fraudulent transfers, so far as material to the present inquiry, are as follows :
Sec. J220. “Everjr transfer of property or charge thereon made, every obligation incurred and every judicial proceeding taken with intent to delay or defraud any creditor or other person of his demands is void against all creditors of the debtor and their successors in interest and against any persons upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor.”
Sec. 7223. “In all cases arising under § 5599 or under the provisions of this chapter the question of fraudulent intent is one of fact and not of law; nor can any transfer or charge he adjudged fraudulent solely on the ground that it was not made for a valuable consideration.”
The change of possession, contemplated in § 7221, supra, and necessary to avoid the presumption of fraud must generally and ordinarily bo open and unequivocal and must have the usual characteristics and indications of ownership; it should be such as to indicate to the world the claims of the new owner; the possession should be continuous, tho it need not continue indefinitely; that is, there should not be present an intention to return the property; it must bo substantial and not merely formal. Petrie v. Wyman, 35 N. D. 126, 159 N. W. 616; 20 Cyc. 545; Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500; O’Gara v. Lowry, 5 Mont. 427, 5 Pac. 583; Walters v. Ratliff, 10 Okla. 262, 61 Pac. 1070; Topping v. Lynch, 2 Robt. 484; Guthrie v. Carney, 19 Cal. App. 144, 124 Pac. 1045; O’Brien v. Ballou, 116 Cal. 318, 48 Pac. 130; Rosenberg Bros. & Co. v. Ross, 6 Cal. App. 755, 93 Pac. 284. See also MacDonald v. Fitzgerald, 42 N. D. 133, 171 N. W. 879.
Specifications two, four and five refer to the reception in evidence of the hill of sale and the third party claim. There is no merit to these assignments and indeed they arc not seriously urged by the appellant. In specification three, appellant alleges error based upon a denial of his motion for a directed verdict at the close of the case. We find no such motion in the record. The transcript of the proceedings shows that- both sides rested when the. testimony had been taken without a motion to dismiss tho case or direct a verdict. Neither did the defendant
It is contended by counsel for the. appellant that the attorney for the respondent, plaintiff below, misused tbe attachment bond, which was a part of Exhibit 3, and prejndiced the jury by suggesting to them that the defendant was protected by a surety bond. It may be that some part (if tbe record, like tbe bond, is susceptible of misuse in tbe argument to tlie jury. That may be true of exhibits properly admitted in tbe course of any litigation. Counsel had the opportunity to protect himself against such misuse by timely objections and appeals to tbe trial court to confine the exhibit to its proper use and to restrain counsel from misuse thereof. There is nothing in tbe record before us upon wliicb the finding could be predicated that the exhibit was misused by counsel for the respondent. There appear in the record parts of sentences and isolated sentences which were taken in the course of the argument by the reporter, hut it also appears that the court admonished the counsellor to confine himself to the evidence. The record is wholly devoid of evidence of misconduct or prejudice resulting from the admission or use of this exhibit. We cannot order a reversal on this ground.
There is another fact that should not he overlooked in this connection. The bond which appellant alleges was improperly admitted and misused in the argument to the jury is the statutory attachment bond, by tlie terms of which the plaintiff in the attachment- action agrees “that if the defendant recover judgment, or the attachment herein is set aside
Appellant’s specifications of errors, numbered six to fifteen, inclusive, are based upon certain portions of the charge to the jury. In the instructions criticized, the court, in substance, told the jury that there was a dispute in the case as to -whether the plaintiff was in possession at the time of the seizure of the grain; that the jury must find who was in possession; and that if the jury found that there was not an actual and continued change of possession and that Johnson, the defendant in the attachment proceedings, was in possession of the grain, the burden to prove the good faith of the transaction was upon the vendee, respondent herein; otherwise, the court said, the burden was on the defendant and appellant to show fraud. The court further charged, in the instructions criticized, that the change of possession must be substantial and of such character as the nature of the property permits; that if the jury believed the bill of sale was shown to be fraudulent, the verdict should be for the defendant. It is also complained that the court misplaced the burden of proof in this case, by, in substance, telling the
It is not necessary to discuss these assignments at great length. The court correctly told the jury that the plaintiff had the burden of proof to establish, by the greater weight of evidence, the facts necessary to his cause of action; to do this, plaintiff introduced evidence tending to show that he purchased the grain from Johnson on the 19th of Tune, 1920, under a bill of sale, offered in evidence, and that he immediately took such possession as the circumstances permitted; that he hired the vendor and other persons to harvest the crop and thresh it and himself took part in the threshing operations; and that he received some of the proceeds of the crop. The defendant contends that the sale was fraudulent because there was no change of possession, and that there was no evidence of change of possession justifying the submission of that question to the jury. The court, wo think, correctly assumed that there was a dispute in the evidence upon this question. There was evidence in the case from which the jury could find an immediate, as well as such an actual and continued change of possession as the character of the property and the circumstances permitted. Petric v. Wyman, 35 N. D. 126, 159 N. W. 616; Hood v. Gibson, 8 Kan. App. 588, 56 Pac. 148; 20 Cyc. 543, 545; O’Brien v. Ballou, 116 Cal. 318, 48 Pac. 130, note in 23 L.R.A.(N.S.) 1218; Rosenberg Bros. & Co. v. Ross, 6 Cal. App. 755, 93 Pac. 284. That being the situation, it was proper for the court to instruct upon the necessity of proving an immediate, actual and continued change of possession, and to say that, if the jury found that there vras an immediate and continued change of possession, the burden to establish an intention to defraud creditors was upon the defendant. It was also proper to say, under the facts, as the court did,
The appellant complains of error because the court refused to give four instructions in the form requested by the appellant. The first requested instruction contained a peremptory statement to the jury that the bill of sale was fraudulent and that the burden was upon the plaintiff to prove that the transfer was not intended as a fraud on creditors. Manifestly, in view of the evidence, such a charge would have been erroneous. The second request was properly refused for the same reason. It likewise assumed that the bill of sale was fraudulent on the ground that there was no change of possession at the time of its execution. No error was committed in refusing the third request because the subject matter thereof was amply covered in other portions of the charge. The fourth requested instruction is likewise objectionable because there the court is asked to tell the jury that the burden is on the plaintiff to establish that the bill of sale was not fraudulent. There was dispute in the evidence and such an instruction would have been erroneous. There was no error in refusing defendant’s and appellant’s requests for instructions.
We are satisfied, from a careful reading of the charge and of the record, that the court gave clear and entirely correct instructions upon every point involved in the action. Counsel argues very strenuously that there are badges of fraud upon the transaction of purchase and sale which took place on June 19, 1920, between the respondent and the witness, Johnson, defendant in the attachment action. A badge of fraud, however, is generally but evidence of fraud, from which the triers of the facts may find the existence of fraudulent intent; all of the evidence, including the alleged badges of fraud, was before the jury under correct instructions as to the law and the verdict of the jury is
Judgment affirmed.