Burns v. Hammel

JAMES, J.

Plaintiff sued the defendant, who was at the time the sheriff of Los Angeles County, to recover as damages the sum of $1,950, alleged to have been the value of a certain automobile taken and sold by the sheriff under a writ of execution in a suit of one

Garstang

v.

Guy Posson.

The findings and judgment were in favor of the defendant and against the plaintiff, the latter being a third-party claimant. The appeal is from the judgment and is presented under the alternative method.

From the findings of fact it appears that on the first day of October, 1912, Guy Posson became a debtor of Garstang, and in December of the same year suit was brought by Garstang and judgment recovered therein for the sum of $450, with costs against Posson; that execution was thereafter issued and a sale made of the automobile for the benefit of the judgment creditor, by which act the plaintiff here asserts a conversion was worked of his property. There is really but

[215]

one question in the ease for this court to determine, and that is as to whether under the evidence submitted the court was justified in the making of the finding that Posson was the owner of the automobile and that the plaintiff Burns acquired no title as against the judgment creditor. On the part of the appellant it is contended that the evidence showed without contradiction that Posson never owned the automobile; that he purchased it for his wife with funds belonging to her, and that his use of the machine was not a use coupled with ownership, but in part was for the benefit of his wife and with her permission. It appears without any. dispute whatsoever that Posson at all times, with an exception which will be immediately noted, had possession of the automobile and used it in his business, and that he had such possession at the time the execution herein was levied. There was a brief time when he loaned the machine to one Hedge, who was a close friend and to whom he was indebted for money loaned. Posson purchased the automobile under a contract in which he, as the vendee, was described as “Guy Posson, Trustee”; he gave checks in payment of the price of the machine signed with the same name and designation. He testified that he bought the machine for “another party.” When asked who that party was he said that it was his wife. When asked where he got the funds with which to pay for the automobile, he said: “I got it from Mrs. Posson and some funds that were in the bank that were to that name.” He later said that some of that money had been secured from an old friend named Lewis, who sent the money “to Mrs. Posson” from Portland. In explanation of the circumstances as to how this money happened to be sent, he said: “I had had a stroke of paralysis and had been sick more or less for a year and a half, and Mr. Lewis was an old friend of the family who had been here. I had befriended him and loaned him a good many thousands of dollars many times; he was down here and saw our condition and he advanced this money and Mr. Moore and Mrs. Posson, and it was put in the bank subject to her check and subject to my check as trustee, in order to work when I could work, do what I could. So, thinking we would be able to earn some money through the machine, letting her son drive it, we bought the machine, directed me to buy it.” He added in his further testimony that the money sent by Lewis was a loan to Mrs. Posson; that it amounted in all to about two thousand