Thoroman v. David

SHENK, J.

In this action of claim and delivery the complaint alleges that on January 16, 1922, the defendant sold to plaintiff certain real property and all furniture on the premises. The defendant contends in his answer that the real property alone was sold to the plaintiff and that no furniture was included in the sale. The court found that the furniture was included in the sale and that the plaintiff paid for the same; that the plaintiff took possession of the premises on February 9, 1922, and that on the preceding

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day, February 8, the defendant wrongfully took possession of the furniture and removed the same from the premises; that on and after January 16th the plaintiff was the owner and entitled to the possession of said personal property and that upon the filing of the complaint the plaintiff acquired possession of the same pursuant to the provisions of section 509 et seq. of the Code of Civil Procedure except a few miscellaneous articles valued at $50. Judgment was rendered against the defendant and in favor of the plaintiff for the possession of said few articles or for their value and costs. From this judgment the defendant appeals.

No objection is made to the form of the record which sets forth the papers constituting the ordinary judgment-roll and a “Statement of the Case.” The latter will therefore be deemed equivalent to a bill of exceptions. The principal question for determination is whether the finding that the sale of the furniture was included in the sale of the real property is supported by the evidence.

On the said sixteenth day of January, 1922, the plaintiff addressed to, signed and presented to the Title Guarantee and Trust Company a document wherein it was stated among other things that the plaintiff would hand the company $1,500 which it was instructed to use provided it could issue within fifteen days a continuation of a certificate showing title to the real property to be vested in the defendant and his wife as joint tenants free of encumbrance except certain taxes and restrictions, reservations and rights of way of record; also subject to a trust deed for an unpaid balance of $879.20 and interest. The company was further directed to deliver to the defendant as part of the purchase price a trust deed executed by the plaintiff in favor of the defendant for $1,127.80, payable in monthly installments. The plaintiff further agreed to execute any instruments required to complete the transaction, and when completed all documents recorded for the plaintiff were to be forwarded to him. He agreed to pay for recording fees and revenue stamps and for showing title in himself and wife. As a part of the same transaction and on the same date the defendant signed a document appended to and referring to the foregoing written instrument and addressed to the same company, stating, among other things, that the conditions specified by the plaintiff were approved and that the defendant