Houghton Co. v. Kennedy

HALL, J.

This is an action in claim and delivery to' recover possession of certain property taken from the possession of plaintiff by defendants. The property sued for consists of an engine and boiler, a bunk-house, shafts and piping, fencing, sheds, a Howe scales and a centrifugal pump.

Plaintiff recovered judgment for the possession of all of said property, and defendants have appealed to this court from the judgment and the order denying defendants’ motion for a new trial. The only point relied on for a reversal of either the judgment or the order is the insufficiency of the-evidence to sustain the findings of fact that at the time of the bringing of the suit plaintiff was the owner and entitled to the possession of the property sued for.

Inasmuch as the appeal was not taken from the judgment until more than six months after the- entry thereof, it cannot be considered. (Code Civ. Proc., sec. 939.) This is of no practical importance, however, as the point relied on is. fully presented by the appeal from the order denying the motion for a new trial, the reversal of which would have the effect of vacating the judgment.

All of the property at one time belonged to defendant J. W. Kennedy. Plaintiff claims to have received title to the property in dispute from said J. W. Kennedy in April, 1905. It is insisted by defendants that the property in dispute was-never transferred or sold to plaintiff by defendant J. W. Kennedy, and it is also claimed that prior to the alleged transfer and sale to plaintiff by J. W. Kennedy all of the property sued for was sold by J. W. Kennedy to defendant W. S. Kennedy, and that he, by virtue of such sale, was the owner

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thereof and entitled to the possession thereof when this action was brought.

We shall first take up the contention that the property sued for was never transferred or sold by defendant J. W. Kennedy to plaintiff.

On the first day of October, 1901, J. F. Houghton (the predecessor in interest of the Houghton Company) leased to defendant J. W. Kennedy certain real and personal property. Said defendant became greatly indebted to plaintiff, for which plaintiff held notes of said defendant, and in April, 1905, said defendant had a settlement with plaintiff, whereby plaintiff released said defendant from his obligations under said lease and delivered up. and canceled the notes of said defendant held by plaintiff. In consideration thereof and of said settlement defendant J. W. Kennedy and his wife executed to plaintiff a deed dated April 18, 1905, conveying with other lands all of block 8 in the townsite of Rolinda, Fresno county, together with the appurtenances and improvements thereon and connected therewith. They also executed and delivered to plaintiff a bill of sale, of the same date, in the words following, to wit: