Merrill v. Hurlburt
Synopsis
Appeal from a judgment of the Superior Court of the county of Colusa, and from an order refusing a new trial.
The action is replevin. The property in suit, alleged to be twenty-five tons of hay, more or less, was attached by a creditor of If. S. Merrill, brother of the plaintiff, but subsequently delivered by the sheriff to the defendant Hurlburt as assignee in insolvency of if. S. Merrill. The plaintiff claimed the property by virtue of a sale to him prior to Merrill’s insolvency. The sale was attacked on the ground that there had been no delivery of the property with a continued change of possession. The plaintiff’s testimony, the only evidence respecting the delivery and continued change of possession, showed that he had bought and paid for the property, and carried a portion- of it away, but left the remainder in the vendor’s barn, where it remained until it was attached. The hay was loose, in one body, in the barn. The plaintiff* placed a man in charge of the property, but the barn continued in the possession and under the control of Merrill the vendor.
Per Curiam. Section 3440 of the Civil Code reads:—
“ Every transfer of personal property, other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit [497]of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer.”
The assignee in insolvency of the vendor was “ a successor in interest” of his creditors, and also one “on whom his estate devolved in trust for the benefit of others than himself.”
There was sufficient evidence to sustain the finding of the court that there was not an immediate delivery and actual and continued change of possession of the property.
But the finding that the value of the property described in the complaint is three hundred and seventy-five dollars is not sustained by the evidence. It is admitted by respondent that the undisputed evidence proved there were from twenty-three to twenty-four tons of hay, of the value of fifteen dollars a ton. If the judgment was, in case a return of the property could not be had, that defendant should have judgment for a greater sum than the court found the value to be, Ave could modify the judgment here, so as to make it accord Avith the findings. But the judgment must be based upon the findings, and Ave cannot change the judgment in such manner as that it shall not be supported by the findings. Considering the amount involved in the action we cannot say Ave ought + affirm the judgment upon the maxim de minimis, etc.
Judgment and order reversed, and cause remanded for a new trial.
Hearing in Bank denied.
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