Redington v. Nunan

Replevin—Saxe of Personal Property—Prattd as to Creditors—Change of Possession.—In an action to recover the possession of personal property—in which the defendant justified as Sheriff, under an attachment against one C., alleged in the answer to be owner—it appeared from the evidence that the property (consisting of the stock of a drug store) was purchased by the plaintiffs’ vendor from the assignee in bankruptcy of C., and that C., who was -then in possession, was allowed to remain in possession pending negotiations for a purchase by him; that subsequently the plaintiffs made a written agreement to sell the property to 0. upon certain terms, and that, upon the failure of C. to comply with the terms of the contract, the plaintiffs took possession some time prior to the levy of the attachment. The findings and judgment were for the plaintiffs.

Held: At the time of the transfer it was the assignee who was in possession and had control of the property, and there is no evidence which tends to prove that he did not immediately deliver it to the purchaser, or that the sale was not followed by an actual and continued change of possession. Therefore the transfer can not be conclusively presumed to be fraudulent as against the creditors of the bankrupt.

Id.—Id.—Id.—Sufficiency of Evidence—Finding.—Whether the property at the time of the seizure of it was the property of the plaintiff, is a question for the Court, sitting in place of a jury, to determine; the evidence being conflicting, the finding upon that point can not be disturbed.

Id.—Damages—Conversion.—The action being for the recovery of possession of personal property, and not for its conversion, it was error for the Court to include in the judgment the money expended by the plaintiff in the pursuit of the property.