Williams v. Lerch

McKee, J.: This was an action to recover damages for the taking and detention of certain horses described in the complaint. The horses were taken by the defendant, in March, 1878, by and under an execution, which had been issued upon a judgment in favor of one Ulloa against one F. Sotcher, and came into the hands of the defendant, as a constable of Stanislaus County.

Sotcher, the execution debtor, was, on the 18th day of October, 1877; the owner of the horses, and on that day sold them [332]to the plaintiff in this action; but it is claimed that the sale was simulated, fraudulent, and void, and made for the purpose of hindering, delaying, and defrauding Sotclier’s creditors.

The plaintiff had judgment. Defendant moved for a new trial on a statement of the case, upon the grounds as set forth in his assignment of errors : 1. That the evidence ivas insufficient to justify the findings and decision of the Court. 2. That the findings and decision are against law. 3. That the Court, on the trial of the case, committed errors of law, to which the defendant excepted.

The findings are unnecessarily volumnious. There are twenty-four findings of probative facts, and twelve specifications of particulars, in Avhich, it is claimed, there is no evidence to justify any of the findings. We are satisfied, from an examination of the record, that the testimony was all one Avav. There is no conflict whatever of evidence, and the testimony sustains every one of the findings by the Court.

The contention betAveen the parties is resolvable into two questions: 1. Was there a sale of the property to the plaintiff? 2. Was the sale accompanied by an actual delivery, and a continued change of possession of the property ?

As a fact, there is no question of the sale. Sotcher, on the 18th of October, 1877, sold the horses to the plaintiff for $200, and made and delivered to him a bill of sale of the horses. Upon receiving the bill of sale, the plaintiff, in good faith, paid to Sotcher the $200, according to the bargain between them. But at the time of the sale, the horses were not in the actual possession of Sotcher; they were then upon a mountain range in Tuolumne County, belonging to one Drew, who was ranching the horses for Sotcher. Plaintiff kneAV they were there, for he had been to DreAv’s ranch to look at the horses, with a vieAv of buying them; but as they could not be got up on the day he Avas there, he offered Sotcher $200 for them. Sotcher declined to accept the offer, but before leaving the ranch he made up his mind to accept it; and when he left, he told Drew to get up the horses for the plaintiff, and write to him to come and get them. At the time of the sale, Sotcher told the plaintiff that he had given that direction to DreAv; and, in about two weeks after the sale, Drew wrote to the plaintiff to come for