7 Wash. 243 | Wash. | 1893
The opinion of the court was delivered by
Appellant Hennessy, as constable, had levied upon certain personal property claimed by respondent under certain attachments and executions issued at the suit of other appellants, in actions brought by them against one Dunbar. The property consisted of four oxen, with yokes and chains, which had been the property of respondent, and while owned by him hired to Gray & Emerson. Some
Judgment was entered, on the verdict of a jury, for respondent.
1. The first objection made is that the court allowed Voorhies and Dunbar to testify as to their intent in connection with the bill of sale. But there probably never was a case where it was sought to show that a deed or bill of sale, absolute on its face, was in fact intended as a mortgage, where parol testimony was not admitted. Jones on Mortgages, § 321. By such a proceeding the writing is not varied or contradicted.
2. Whether the officer had or had not notice of the true relation of Dunbar to the property seized, could make no difference; if it really belonged to respondent he had no right to interfere with it. The creditors of Dunbar were not purchasers for value, and could lose nothing, however the title turned out to be. Burke v. Johnson, 37 Kan. 337 (15 Pac. Rep. 204); Drake on Attachment, § 197.
3. If Dunbar was a mortgagee in possession after the maturity of his debt, appellants are in error when they assume that such a state of facts amounted to a forfeiture so that the legal title to the property vested in him. Such is, perhaps, the general rule (Jones, Chat. Mort., 566); but it does not prevail in this state. Silsby v. Aldridge, 1 Wash. 117 (23 Pac. Rep. 836).
5. The assignment by Dunbar to the Weatherwax Lumber Company of the debt owing the former by respondent having been shown to be in writing, no further proof concerning the transaction should have been received until the writing was produced or accounted for. It was, therefore, error to allow several witnesses to testify concerning it. The assignment carried with it the right to the security, and it was a material matter as tending to show the acts of the parties to the bill of sale, respondent claiming that he was called upon to agree to the transaction, and that he did agree.
6. The court charged the jury as follows:
‘ ‘ If you find by a fair preponderance of the evidence that said bill of sale was intended only as security for an indebtedness then owing from plaintiff to Dunbar . . . then your verdict should be for plaintiff. ’ ’
Were the testimony of the two parties to the bill of sale standing alone, without circumstances which leave it open to question whether the theory of the bill of sale was not an afterthought, as appellants stoutly contend, we might be able to uphold the judgment entered, for want of prejudice growing out of this charge. But as the case stands we cannot say that no injury was inflicted upon the appellants by it. In such cases the solemnity of a writing is not to be overcome by a mere preponderance of evidence. The writing itself stands aá the clearly stated and deliberately ascertained intention of the parties, which must be enforced, unless it is shown by clear, positive and convincing evidence that the mutual intention was something else, and that it was with such different intention understood by both parties that the instrument was delivered and ac
The judgment is reversed, and the cause remanded for a new trial.
Dunbar, C. J., and Hoyt, Anders and Scott, JJ., concur.