Cahoon v. Marshall

California Supreme Court Jul 1, 1864Published

Before: Currey

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Holding. The court held that the trial judge erred by instructing the jury that the plaintiff's possession of the real estate established his possession of the personal property, as the question of whether the vendors retained possession of the farm was a factual issue for the jury to decide.

Issues

Whether the trial court erred in instructing the jury that the plaintiff's possession of the real estate established his possession of the personal property.
What constitutes an actual and continued change of possession under the Statute of Frauds for the sale of personal property.
Whether declarations of vendors made after a sale are admissible as evidence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“A sale which is not followed by the change of the possession of the property sold which the statute has prescribed is, as to the creditors of the vendor, to be deemed fraudulent and void”

“Hence it was erroneous for the Court to assume and thereby decide the fact to be that the plaintiff was in the possession of the farm when the personal property thereon was attached.”

Synopsis

Possession of Personal Property.—An actual change of the possession of personal property, as distinguished from that which by mere intendment of law follows the transfer of title, is an open visible change, manifested by such outward signs as render it evident that the possession of the vendor has wholly ceased.

Instructions to a Jury.—The jury are the exclusive judges of the facts, and it is erroneous for the Court to assume, in its instructions to the jury, that a certain fact exists, and then submit to them the question whether or not it does exist.

Possession of Land.—The possession of real property is of two kinds: the one constructive, depending upon the title and the right to the actual possession, and the other subsisting in the actual occupation.

Delivery of Personal Property.—Where one purchases land and receives a conveyance therefor, and at the same time buys personal property on the land, the question whether the vendee had actual possession of the land is an important one in determining whether there was an actual delivery of possession of the personal property.

By the Court, Currey, J. The plaintiff, who was a creditor of the firm of Miller & Miller in the sum of about seven thousand and six hundred dollars, purchased of them on the 7th of August, 1861, two parcels of real property, one of which was in the City of Sacramento, and the other (a farm) was about eight miles therefrom. The price at which he so purchased was six thousand dollars, and the payment was made by a credit of the "Millers with that sum on their debt. A deed of conveyance was executed by them to the plaintiff and duly recorded' on that day. To satisfy the balance still .due, the Millers on the same day sold to plaintiff certain personal-property which was upon the farm and delivered the same to him. The plaintiff at the time employed one Minott, who was then in the service of the Millers oh the farm, to take the charge and care of this personal property for him. Minott accepted the employment and remained in charge of the property until it was taken from him by the defendants; and one of the Millers also remained upon the farm, though it does not distinctly appear that he was there to the plaintiff’s knowledge or by his consent. •

■ Three days after these sales were made, George W. Stewart [199]and Chauncey Stewart, who were also creditors of the Millers, commenced actions against them in the District Court for the recovery of the sums of money due the Stewarts, and sued out writs of attachment, by virtue of which the defendant Marshall, who was the Sheriff of the County of Sacramento, attached the personal property sold to the plaintiff. The Stewarts afterward obtained judgments, upon which executions were issued and by virtue thereof the same property was sold by the Sheriff. Immediately after the execution of the attachments, the plaintiff gave the defendants notice of his purchase of and claim to the property. For the taking away and disposing of this personal property the plaintiff brought this action.

The defense interposed was that the sale was made to hinder, delay and defraud the creditors of the Millers, and also that such sale was not accompanied by an immediate delivery of the property sold, nor followed by an actual and continued change of the possession thereof from the vendors to the vendee.

At the trial of the issues joined much evidence was introduced and submitted to the jury respecting the bona fides of the sale, and also touching the delivery and actual and continued change of possession. The case was submitted, under instructions of the Court, to the jury, who rendered a verdict for fifteen hundred dollars in favor of the plaintiff against the defendants, on which judgment was entered.

Cahoon v. Marshall

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