59 P.2d 1165 | Nev. | 1936
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *133 The defendants, Jewell De Long and Bill De Long, Jr., in their answer, admitted that they were jointly in possession with the mortgagors of all the disputed property, and then alleged affirmatively that the said defendant sons were the owners of the disputed property, jointly, with their brothers Melvin De Long, Irvin De Long and Albert De Long. Then upon the trial, over the objections of the plaintiff, the said defendants, without any amendment of the pleadings, were permitted to make proof that the said defendant sons, together with their three brothers named in the answer, and their sister, May Angus, not named or referred to in the answer, were the owners of all of the disputed property. This was a fatal variance in the proof. 49 C.J. 813.
We have assigned as an error of law the findings and conclusions of the trial court that the minor children of the mortgagors could lawfully accumulate property during their minority as a result of labor and services rendered while living with their parents, there being no evidence of emancipation. 46 C.J. secs. 1235, 1281, 1282, 1314; Harper v. Utsey (Tex.),
The statutes of Nevada provide for the recording of brands and marks, and no legal recording of a brand or a mark, or brands and marks, can be made in any way except in compliance with the statutory provisions. Secs. 3790, 3795, 3804 N.C.L.; sec. 2239 Rev. Laws 1912. Upon the original pretended recording of this alleged JHG monogram brand, there was recorded therewith no mark or marks whatsoever, and the record failed to show that any natural person, corporation or legal partnership claimed to be the owner thereof. William M. De Long could not have been appointed to act as the authorized agent of a minor, except by a proper court order, so, if there is any legal ownership of the brand it is in William M. De Long.
Further, the defective record introduced in evidence provided that the JHG brand would be placed on the right hip, but whenever there was a pretense at making use of the brand, it was placed on the left ribs and the left hip, and the legally recorded marks of the father, at all times, accompanied and was placed upon the animals along with the illegal JHG monogram brand.
Notwithstanding these facts, the court erroneously overruled plaintiff's objections to the introduction of the brand in evidence, for the purpose of making proof of the ownership of animals upon which it had been placed, and the same was considered in proof of ownership of the livestock claimed by all of the De Long children. And the court also erroneously permitted the defendants to supplement and explain the same by parole evidence as to whom was meant by "Wm. De Long's boys," and the court erroneously found that "Wm. De Long's boys" meant all of the De Long children who chose to claim that they came within a class so designated. Nounce et al. v. Wrightmen et al. (Ariz.),
This is a suit in equity and the court had jurisdiction of the parties and the subject matter of the suit. It appears in evidence, by the testimony of the defendants, that in the event that it should be decided by the court that the disputed livestock was the property of defendants, then defendants were indebted to plaintiff for a sum in excess of six thousand dollars for feed, etc. Lawrence v. Halverson (Wash.),
The evidence was wholly insufficient to support a finding in favor of the defendants, or the children of Wm. De Long, and against the plaintiff, and the decision and judgment of the court should have been set aside and a new trial granted upon the law and the evidence.
A witness is defined, in the statutes, as a person required to attend upon the court, and there is no right given to collect witness fees for any other person. A witness who appears in court without having been subpenaed is not a witness at all until required to be sworn and give evidence, at which time he becomes a person required to attend, and witness fees for such appearance may be taxed as costs, in the manner required by law. Sections 8490, 8934, and 8982 N.C.L. If the JHG brand had never been recorded, if it had never been placed on a cow claimed by Wm. De Long's boys, H.C. Warren would not have any title to the cattle unless he could prove that they were the increase from the OYL brand and covered by the mortgage.
It is true that hay was sold to the boys, and also to other persons. But if a right of action exists against any of the parties to whom hay was sold, it could not be litigated in this action. Plaintiff could not have set up in his complaint to foreclose the mortgage that he had an agistor's lien on the JHG cattle. In any event, the evidence in the case is that Wm. De Long was paid in full by his sons for the hay and pasture. *136
Under the general principle of law relating to gifts, deeds and fraudulent conveyances, either parent or child enjoys a right to transfer property to the other party to the relationship, and having exercised such right becomes bound by his or her act. 12 Cal. Juris. 1070; 20 Cal. Juris. 442; Emmons v. Barton (Cal.),
By the civil code, a gift is defined as "a transfer of personal property, made voluntarily, and without consideration." See, also, 13 Cal. Juris. 32, 33, 34, 36, 37, 39; Evans v. Sparks (Cal.),
A minor may acquire either real or personal property by inheritance, by gift, or by purchase, and may own and hold the legal title thereto to the same extent as a person of legal age. 31 C.J. 1013 to 1024, and citations; Delillivian v. Evans,
The issue as to the emancipation of the children does not properly belong in this case, for the reason that the cattle were not acquired by them by reason of labor and services, but by gift, but we believe it best to submit some law to the court bearing on the subject. Woods v. James (Cal.),
The recordation of the JHG brand and the awarding thereof by the state board of stock commissioners constitute prima-facie evidence of ownership. Sections 3792, 3793, 3796, 3797, and 3799 N.C.L. *137
The fact that the cattle were branded on the left side, instead of on the right side, as shown by the record of the brand, is not material. State v. Cardelli,
No presumption of a conspiracy arises in this case because of the fact that Wm. De Long's boys lived with their father and mother, worked for the father, received wages, and conducted their cattle business from that point. Each of the defendants denied that they misbranded any cattle; on the contrary, they asserted that they were always careful to brand the cattle accurately and according to ownership. Albert Wearing also testified to the proper branding of the stock. Nevada Min. Exp. Co. v. Rae,
Nor is there any presumption that a conspiracy existed because of the fact that Wm. De Long supervised the business details connected with the JHG cattle. Kreigh v. Cogswell (Wyo.),
The evidence in the case shows that no subpenas were served upon any of the witnesses; that all of them were instructed by the attorneys for defendants Bill De Long, Jr., and Jewell De Long to be in attendance and subject to call; that all of the witnesses were in attendance upon the court and subject to call during all the times set out in the cost bill; that the witnesses William De Long, Mabel De Long, May Angus, Raymond Woodward, Harold Woodward, and Albert Wearing were sworn the day of the commencement of the trial; that the other witnesses, except one, were not sworn on the first day, but were at all times, from the day of the commencement of the case, available as witnesses and subject to call; that all the witnesses testified in the case in behalf of said defendants; and that all of them came from Humboldt County, Nevada. It is our contention that the last paragraph of section 8934 N.C.L. renders it unnecessary to serve subpenas upon witnesses *138
in order to be entitled to the costs of their fees and mileage. Helena Adjustment Co. v. Claflin (Mont.),
We will refer to William M. De Long and wife as "defendants," and to the other defendants as "children."
Plaintiff has appealed from the judgment on the merits in favor of the children, and the children have appealed from an order made after judgment, retaxing costs.
All of the defendants admit the execution of the notes and mortgage in question, and that plaintiff was the owner and holder thereof at the time the action was brought.
The mortgage covers "about four hundred head" of cattle and their increase, and ranching implements upon the ranches covered by the mortgage, owned by the defendants William De Long and wife.
The real controversy on this appeal is as to the ownership of about 315 head of cattle bearing a JHG monogram brand, which the children claim to own, and which were run during the life of the mortgage upon the ranches in question and the range adjacent thereto, and *139 other personal property. In this connection, the complaint alleges, in substance, that subsequent to the delivery of the notes and mortgage the defendants and the children did fraudulently and collusively enter into a conspiracy to cheat and defraud the mortgagee and to deprive him of a portion of the property covered by the mortgage.
About the year 1903 the defendant William M. De Long and his brother, Alta L. De Long, purchased the Happy Creek ranch of one J.H. Griffin, together with the cattle and the JHG brand, which brand was used by them for a time and until all of the cattle bearing that brand were sold, after which that brand was not used by them. In the year 1905 William M. De Long and Mabel De Long intermarried, of which union a son, Floyd De Long (now deceased), was born in 1906. At this time Alta De Long and William M. De Long dissolved partnership. At the time of the birth of Floyd De Long the defendants had adopted and were using the OYL monogram brand, which they continued to use to the time of the institution of this suit. Upon the birth of Floyd De Long the defendants gave him one heifer calf, which was branded JHG. Between the years 1905 and 1917, inclusive, there was born to the defendants seven sons and a daughter. On February 2, 1916, William M. De Long caused to be recorded in the office of the recorder of Humboldt County, in which is situated all of the property in question, the JHG monogram brand, in the name of "Wm. De Long's boys," to be used on horses right shoulder and on right shoulder of cattle. Upon the birth of each of said children to the defendants he was given one heifer calf. In addition thereto, from twenty to twenty-four calves were given to said children by different persons, including two grandmothers. The JHG brand was again recorded in the office of the recorder of Humboldt County in the year 1920. In 1923 the same brand was recorded in the office of the state board of stock commissioners, with following earmarks: A square crop in right ear and underslope in left ear, *140 with wattle on left side of neck and dulap on brisket. The said brand was rerecorded in said last-named office in 1926, in 1930, and in 1935. All of said records having been made by William De Long in the name of "Wm. De Long's boys."
We will not consider the errors assigned in the order of assignment. The first alleged error we will dispose of relates to the ruling of the court in holding that the JHG brand was legally recorded and lawfully employed and used by the children. In this connection plaintiff calls attention to sections 3790 and 3795 N.C.L. which relate to the recording of brands with the state board of stock commissioners.
Section 3790 reads: "Every owner of horses, mules, asses, cattle or hogs in this state may design and adopt a brand or brands, or brand and mark, or brands and marks, with which to brand or brand and mark his or her or its horses, mules, asses, cattle or hogs; provided, that it shall be unlawful for any owner of such animals to brand or brand and mark, or cause to be branded or branded and marked, his or her or its horses, mules, asses, cattle or hogs with a brand or brand and mark not at the time of legal record as hereinafter provided."
Section 3795 reads: "Hereafter, and excepting the rerecording, as provided for in this act, of brands or marks of horses, mules, asses, cattle, and hogs, of legal record at the time of passage of this act, every owner of horses, mules, asses, cattle or hogs in this state, desiring to adopt and use thereupon any brand, or brand and mark, or marks, as provided for in this act, shall, before doing so, forward to the board an application for the recording of such brand or brand and mark or marks and receive his or her certificate of recordation as provided herein. Said application shall include a drawing, exact except as to size, of the brand, together with any ear or other marks desired or intended to be used therewith, and the location upon the animal or animals concerned where such brand and ear or other marks are *141 desired or intended to be used, as well as a statement of the kinds of livestock upon which said brand or brand and mark or marks is or are to be used, the approximate boundaries of that part of the state within which it is intended to use the same, and the full name and address of the applicant. For the purpose of this act, the post-office address included in the application shall be considered the legal address of the applicant until the board shall receive from such applicant, in writing, a notice of change of the same, the latest address of record with the board remaining the legal address."
The sections quoted were enacted in 1923 (Stats. 1923, p. 25, c. 26), but for many years prior thereto there was a statute pertaining to the branding of livestock (Stats. 1873, p. 99, c. 39, Rev. Laws, sec. 2233 et seq.).
1. In support of the contention made, it is said in plaintiff's opening brief: "Upon the original pretended recording of this alleged JHG monogram brand, there was recorded therewith no mark or marks whatsoever, and the record failed to show that any natural person, corporation or legal partnership claimed to be the owner thereof."
In February 1916, when the original record was made, the statute read: "Owners of horses, mules, cattle, sheep, goats, or hogs, running at large, must have a mark or brand, and counter brand, different from any one in use by any other person, so far as may be known." Rev. Laws, sec. 2233.
This section required that owners of livestock "must have a mark or brand, and counter brand." It was optional whether an owner would have a mark or a brand. The word "or" clearly. indicates that it was not necessary that he have both.
The law of 1923, section 3790 N.C.L., above quoted, provides that every owner of livestock "may design and adopt a brandor brands, or brand and mark or brands and marks." It is not even mandatory that an owner adopt and record anything which may be used as a *142 means of identification of livestock, but if he elects to do so he may adopt (1) "a brand or brands," or (2) "brand and mark," or (3) "brands and marks."
From a careful reading of the two acts it appears that it was not necessary that the children adopt and record a mark or marks, in addition to a brand.
It is not clear just what point plaintiff seeks to make because the original filing contained no marks. When the 1923 act was adopted a filing was made with the state board, adding to the brand the marks. It is not contended that this cannot be done.
As to the other point, that is, that "the record failed to show that any natural person, corporation or legal partnership claimed to be the owner thereof," we assume that it is meant that "Wm. De Long's boys" are not natural persons.
2. We are of the opinion that the legislature, in enacting the statutes relative to the branding and marking of livestock, had in mind merely to provide a method whereby an animal may carry with him prima-facie proof of ownership (3799 N.C.L.), thereby aiding in the identification by an owner of his property, and the establishment of ownership.
3, 4. We are of the opinion that the children are natural persons. We think it is not uncommon for owners of cattle to do business in a firm name and to have a brand in such name. That appeared from the opinion in State v. Cardelli,
5. It is said in plaintiff's opening brief that the children allege affirmatively that they were the owners, jointly with their brothers, of the property in question, and were permitted to make proof that the brothers and sister were joint owners thereof, without first having amended their answer. If an error was committed, as contended, it was harmless, as plaintiff's case was not affected thereby.
6. It is strenuously urged that the trial court erred in finding that the minor children could lawfully accumulate property during their minority as the result of labor and services rendered while living with their parents. Many authorities are cited in support of the general rule of law on the point made. We agree with the general rule of law as contended for, and recognized it in Goldsworthy v. Johnson,
7. That the parents emancipated the children so far as the cattle in question are concerned, is clearly established by the filing for record by the father of the brand, *144 in 1916, and the continued acknowledgment of such emancipation, long prior to the giving of the mortgage in question.
At point IV of appellant's brief it is said that it is admitted that the JHG brand was not legally recorded. We find nothing in the record substantiating this statement. In fact, everything indicates the resistance of this contention. From what we have already said, we think it was legally recorded.
8. We do not think the court erred in permitting evidence to be introduced to show who were meant by "Wm. De Long's boys." So far as the plaintiff is concerned, it did not matter whether there were three or thirty claiming under that brand.
9. It is also contended that the recorded brand was improperly admitted in evidence because the record states that the cattle should be branded on a particular portion of the animal; whereas, some of the cattle are branded on the opposite side of the animal from that called for in the record. The plaintiff was not prejudiced by the ruling of the court, under the facts of the case. The Texas court, in disposing of the same question in Harwell v. State, 22 Tex. App. 251[
We think this court has approved the same idea. In State v. Cardelli,
10. It is also contended that the children forfeited all right they had to the cattle claimed by them, because they were not branded and marked exactly as contemplated by section 2239 Rev. Laws of 1912. The section mentioned is section 7 of the act of 1873. We think the act of 1873 was expressly repealed by the act of 1923, being section 3806 N.C.L. But if not expressly repealed, it was repealed by implication by the act of 1923 (sections 3790-3807 N.C.L.), which revises the whole subject matter of the act of 1873. Thorpe v. Schooling,
Having disposed of all of the legal questions raised, there remains but the question of whether the evidence is sufficient to sustain the judgment and order appealed from.
11. We do not feel that it is necessary to review the evidence at length. It is clear that the recording of the brands and marks in behalf of the children was not with the intention to defraud this plaintiff. The first record was in 1916, eleven years prior to the giving of the mortgage in question. The amending thereof so as to add marks was several years before the mortgage was given, and the rerecording was but a natural consequence of the former recording.
Senator Phil Tobin testified that he had been familiar with the range on which the cattle ran since 1923; that in 1924 he rode the range after his own cattle and as appraiser, for the First National Bank, of the Lay *146 cattle; that it was common knowledge that the JHG cattle belonged to "Bill De Long's boys." Several other witnesses testified along the same lines, besides members of the De Long family.
There is testimony on the part of the De Long boys — by themselves and others — that they used care not to brand calves following cows with the OYL brand, though it appears that at least one calf was improperly branded JHG. There is testimony also that a calf belonging to the children was branded OYL. There is testimony by one of the plaintiff's main witnesses (and others) that he has made such a mistake.
The supreme court of Wyoming had substantially the same question before it as is involved in the instant case, so far as the gift of livestock to minor children, and its offspring, is concerned, in the case of Kreigh et al. v. Cagswell et al.,
In this connection we cite Rowan v. U.S. Fidelity Guaranty Co.,
12. While the conditions under which the cattle in question were run and the other personal property was dealt with were such as might have enabled fraud to have been perpetrated with ease, and courts should closely scrutinize the evidence in such situations, as no doubt the court did in the instant case, in view of the fact that fraud is never presumed, and must be clearly and satisfactorily shown (Nevada M. E. Co. v. Rae,
We have made no allusion to the evidence concerning the farming implements. To undertake to deal with each specific article would unduly lengthen this opinion.
Plaintiff attacks strenuously the finding of the court as to one Fordson tractor. It was owned and used by Floyd De Long in Elko County, and was never in Humboldt County until several years after the execution of the mortgage, when, according to the positive evidence, he gave it to the children. There was ample evidence to enable the court to reach the conclusion it did as to this property, and we cannot say that it erred.
13. It is also contended that William De Long sold hay, which was grown on the ranch, to the children, with which to feed their cattle; hence plaintiff should have a claim upon them for its value. If plaintiff has any such claim, it is evidently an afterthought, as no issue is made of it in the pleadings; hence we cannot pass upon it.
Upon the entire record, we are of the opinion that the judgment and order appealed from should be affirmed.
We will now consider the appeal of the children from the order retaxing costs.
14. The children put in claims for witness fees and mileage for witnesses who resided at a distance from the place of trial, but who were not subpenaed to appear, but who, being in the courtroom during the trial, were called to testify. The court disallowed the claim for such witnesses, except for the day called to the witness stand. We see no error in this ruling.
Section 8490 N.C.L. provides that: "Witnesses required to attend in the courts of this State shall receive the following compensation." *148
Section 8982 provides that a person present in court may be required to testify in the same manner as if he were in attendance upon a subpena.
Counsel for the children have filed a very exhaustive brief on this question, reviewing the statutes from the earliest day down to the present laws, and contend that the condition which prevailed before automobiles and good roads came into prominence presented a different situation than now. This is true, but if the legislature thinks these changed conditions justify a change in the law, it is up to it to say so.
The law as it exists was interpreted in Meagher v. Van Zandt,
It is also ordered that the order and judgment appealed from by plaintiff be affirmed.
Addendum
Counsel seeks to make a great point of this. In his petition he says:
"But the evidence is clear, positive and uncontradicted, that the number of cattle claimed by the De Long children is 241 head. But, notwithstanding this evidence, the trial court found that there were 300 head of cattle, and this court places the number at 315.
"Of course, the statement, by way of a recital in the *150 opinion, that there are 315 head of cattle in dispute, could not be very material were it not for the fact that the judgment itself is so grossly erroneous upon this very vital point in the case. This recital, however, becomes very material indeed when this court's attention is called to the fact that the evidence discloses, without contradiction, that there were in fact but 241 head of cattle bearing the JHG brand, and that the trial court gave to the defendants, Bill De Long, Jr., and Jewell De Long, along with three brothers named and a sister, a judgment against the plaintiff, commanding the forthwith delivery to said persons of 300 head of cattle, thus giving judgment against the plaintiff for 59 head more cattle than the evidence clearly showed were in controversy."
By the language complained of we referred to the number of cattle in controversy, merely. The fact is that the plaintiff's complaint, which is sworn to by the plaintiff and signed by counsel, avers, at line five, page 11 of volume 2 of the record, that the number of cattle "which the said defendants by means of a fraudulent conspiracy between themselves have sought to and are now seeking to claim to be the property of the said defendants" are 350 head of mixed cattle. The answer of the children avers that they "now are the owners of, and entitled to the possession of about 300 head of cattle * * * in the vicinity of Happy Creek and range adjacent thereto * * * and about 14 head of cattle located at Bottle Creek ranch branded JHG," 314 in all.
The trial court in its formal findings held that the children were entitled to "about 300 head of cattle * * * which said cattle range in the vicinity of Happy Creek and range adjacent thereto * * * and about 14 head of cattle located at Bottle Creek ranch, * * *" total 314.
1. We fail to see wherein plaintiff was injured by our innocent statement as to the number of cattle in controversy.
We think, too, the evidence sufficient to justify us in *151 not reversing the findings as to the number of cattle awarded respondents.
Counsel complains bitterly of the following language in the opinion: "So far as the plaintiff is concerned it did not matter whether there were three or thirty claiming under that brand."
2. In this connection counsel says "plaintiff never had a day in court with any of these named parties except the named defendants Bill De Long, Jr., and Jewell De Long." In the verified answer filed by Bill De Long, Jr., and Jewell De Long it is stated that other children jointly with them had in their possession and owned a large number of cattle branded JHG. Plaintiff knew long before the trial of the claim of ownership of all the children. He could have asked that they be formally made parties. He did not do so, and now, for the first time, complains that he has not had his day in court. He was not surprised during the trial and we do not see that he has been injured. The judgment should not be reversed for a nonprejudicial technicality, if there be such, of which plaintiff knew and bided his time to urge.
Counsel complains grievously because of the following statement in our former opinion: "This conclusion as to the livestock is, to some degree, fortified by reason of the fact that plaintiff reported to the assessor of Humboldt County, for tax purposes, the cattle claimed under his mortgage, to be greatly less than actually rounded up, as the property of defendants, shortly before this suit was brought."
3. We confess that the statement is inaccurate. Testimony was offered on the trial as to the number of cattle assessed to Wm. De Long, Sr., during the years 1930, 1931, 1932, 1933, and 1934. Counsel for defendant objected to this offer, but finally stipulated as follows: "I will save time by stipulating the record will show that 178 head of cattle were assessed to William De Long, Sr." He further stipulated that the plaintiff *152 paid taxes on that number of cattle for the years mentioned. This correction does not entitle plaintiff to any favorable consideration in the matter.
Counsel also takes umbrage at our ruling as to the claim for hay sold by Wm. De Long, Sr. He says: "From first to last the court, in its opinion, treats this controversy as an action at law for the recovery of the possession of certain personal property. This view of the case at bar is so plainly erroneous that a brief statement of the situation as disclosed by the pleadings will demonstrate its fallacy."
4. The fact is that we disposed of the questions raised, as we understood them, and we think that we decided in accordance with legal principles. As we held, there was no allegation in the complaint even intimating such an issue, hence we could not say that the trial court erred in its ruling. Judgments are reversed for the correction of errors only. Truckee River G.E. Co. v. Durham,
We adhere to our former ruling.
5. Relative to the branding on the wrong side of the cattle, we may say that under all of the evidence in the case plaintiff was not misled nor injured. Plaintiff's theory is that the defendants conspired to defraud the plaintiff. Senator Tobin and others testified that it was commonly known that the JHG cattle belonged to respondents. Plaintiff's chief reliance, in an attempt to show a conspiracy to defraud, is based upon the fact that the conditions were such as to be conducive to the perpetration of fraud. This is not enough. Fraud must be proven; it is never presumed.
From a consideration of the entire record, we cannot say that the trial court reached a wrong conclusion.
The petition for a rehearing is denied. *153
