Ruddle v. Givens

Searls, C. J. This is an action of claim and delivery, brought by plaintiff to recover possession or the value of twp brown work-horses, one báy work-horse, one roan work-horse, and four two-year-old colts, branded X on left hips; also, two yearling colts not branded.

Plaintiff claims title to the property and right of possession under a bill of sale dated June 2, 1886, executed by one John K. Walling in favor of himself. This bill of sale, in addition to describing the horses in dispute here, also purported to convey title to other horses not in dispute. Plaintiff also claims right of possession by virtue of a delivery of such possession to him, made one or two days after the bill of sale was executed.

Defendant justifies as sheriff of Merced County, under an execution levied by him upon the property in an action wherein A. Zirker and R. W. Hammatt, under the firm name of Zirker & Hammatt, were plaintiffs against the said John IÍ. Walling, defendant.

And also denies right of possession in plaintiff, and sets up ownership, right of possession, and possession in the said John K. Walling.

[458]The case was tried by a jury. Plaintiff had a verdict, upon which judgment was entered.

The appeal is by defendant, from the judgment and from an order denying a new trial.

The important question for consideration is as to the sufficiency of the evidence to support the verdict. There is very little conflict in the testimony.

Taken in its most favorable aspect to plaintiff, it shows that on the second day of June, 1886, he received a bill of sale of the horses in dispute, and of others not in dispute, from John K. Walling, his brother-in-law. The horses at the time of the sale were at the pasture of a man by the name of Davis. A day or two after the sale plaintiff and Walling went to Davis’s pasture, where plaintiff took possession and removed a part of the horses to George Barfield’s and part to Schaffer’s pasture.

After the horses had been in Barfield’s pasture for some time, plaintiff told Davis to take them from Bar-field’s and put them back in his pasture.

Walling took the horses in dispute here, and put them into the pasture of a man named Asbury, where they remained until taken by defendant as sheriff under a writ of attachment against the property of Walling, on the ninth day of June, 1887.