Wambold v. Vick

50 Wis. 456 | Wis. | 1880

Oeton, J.

It is a well-settled principle of law, that a father may emancipate his minor son, and by agreement with him relinquish the right he would otherwise have to his services. Monaghan v. School Dist. No. 1, Town of Randall, 38 Wis., 100. And this he may do although insolvent at the time. Atwood, Trustee, v. Holcomb, 39 Conn., 270; Lackman v. Wood, 25 Cal., 147. It follows, therefore, that Levant Wam-bold, the infant son of the defendant in the attachment, had the right to acquire the property in controversy, by purchase or otherwise, from William Daniels, and hold it as against his father or his father’s creditors,'and give it, if he saw fit, to his infant sister.

Another principle of law is equally well settled, and that is, that prior possession is prima facie evidence of title, to maintain an action to recover the property or its value as against a mere wrong-doër. Rogan v. Perry, 6 Wis., 194; Armory v. Delamirie, 1 Smith’s Lead. Cases, 584; Coffin v. Anderson, 4 Blackf., 395. If, then, the plaintiff was in possession of the property when the defendant, as constable, seized it on the attachment against her father, A. Wambold, claiming it as her own, and it was not shown that A. Wambold had any interest in it, the defendant took it without right, and was a mere trespasser, and the plaintiff was entitled to recover.

In this case, however, the plaintiff went further, and not only proved that she was in the sole possession of the property at the time, and claimed it as her own in the presence of the defendant, and protested against its seizure, but introduced evidence tending to prove that her infant brother, Levant, purchased the piano, stool and cover of one William Daniels, and paid him the purchase money therefor, and afterwards, in the presence of several friends, who had assembled for the •purpose of witnessing it, made a formal presentation and gift of them to her. The contract between Levant and Daniels, of the sale, was introduced in evidence, and Daniels testified that Levant had fully paid the purchase money. It was sought, on the part of the defendant, to show-that part of this purchase money came from the father, the defendant in the attachment; but the attempt wholly failed. The gift by Levant to the plaintiff, his sister, was also conclusively proved. These facts being established, the statements or evidence of A. Wam-bold became quite immaterial, as well as the attempt to contradict or impeach him, and therefore the exceptions relating to his evidence or statements need not be considered. What was said, as well as what was done, on the occasion of the presentation or gift, wrere part of the res gestae, and not hearsay; and the general circumstances of the family at the time of the pretended purchase and gift were proper to be shown, to sustain and corroborate and make probable the transactions as testified to by the plaintiff and her brother, and therefore were not irrelevant.

This being our view of the case, the question as to the admissibility of the evidence to prove the contents of the warrant of attachment and return thereon, the originals being lost, becomes immaterial;' for it is assumed that the defendant, as constable, had the right to attach the property of A. Wam-bold. It may be intimated, however, that there appears to be no reason why the contents of these lost documents might not have been shown by parol, under the general rule. Rogers v. Cross, 3 Chand., 34; Wilke v. Wilke, 28 Wis., 296. The circuit court excluded the parol evidence offered to prove either the writ or the return, but allowed the plaintiff to show, by the statement of the return made by the justice in his docket, that there was no valid service on the defendant in the attachment. This certainly should not have been allowed; for even the original return, if it had been present, could not have been offered in this suit against the officer without the warrant upon which it was made. Weinberg v. Conover, 4 Wis., 803. If, then, the original return would not be admissible without the warrant, much less would such a statement of it be admissible without the warrant, or proof of its contents, if lost. Both the original warrant and return were lost, and proof of the contents of either was rejected. In this, we are inclined to think, the court committed a double error; but both are immaterial, because there was no proof that A. "Wambold, the attachment defendant, had any interest in the property. The circuit court very properly directed a verdict for the plaintiff.

By the Court. — The judgment of the circuit court is affirmed, with costs.