Cerf v. Phillips

Foote, C. —This is an action of claim and delivery. The appeal is from a judgment in favor of the plaintiff, and from an order refusing the defendants a new trial.

The defendants demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, because, as they say, no demand was alleged to have been made for the possession of the property before suit was brought.

If the facts set out in the pleading objected to were true, and for the present purpose they must be so treated, the defendants were never lawfully in possession of the property in dispute; the sale to them was absolutely void, being in contravention of section 55 of the insolvent act of 1880, and section 3439 of the Civil Code.

The defendants were inhibited by law from making the purchase, the insolvent could have no right to sell, and the plaintiff in this action, the assignee in insolvency, is as against them the lawful owner of the property, and derives his right to it from the act participated in by the defendants and the insolvent, whereby they violated the law.

The defendants did not obtain a lawful possession of the property. They purchased it from those who had [188]no right to sell it in view of the relative situation of the parties to the transaction, and the defendants in taking possession of it under the attempted and void sale converted it to their own use unlawfully. No demand was necessary, and the demurrer was properly overruled. (Bull v. Houghton, 65 Cal. 422; Surles v. Sweeney, 11 Or. 21.)

Besides, the defendants do not seem to have relied upon their demurrer, as if they were willing to yield up possession if a demand therefor had been made by the assignee in insolvency. In their answer they claim title in themselves adverse to the plaintiff, and give no countenance anywhere in the record to the belief that a de-' mand, if made, would have been of any avail. Having contested the case upon the merits, on a claim of superior right to the property, it would seem as if a demand would have been useless, and that the case in hand comes within that class where no demand is necessary. (Lamping v. Keenan, 9 Col. 390.)

We cannot say that the verdict of the jury was contrary to the evidence; it was for them to determine the credibility of witnesses, the weight of testimony, and the force of all the ciscumstances adduced in evidence; they have done so, and we see no reason to disturb their verdict upon the special issues submitted to them.