Affierbach v. McGovern
Before: Works
Synopsis
Replevin — Pleading—Averment op Ownership.—A complaint in an action to recover the possession of personal property which only avers ownership and right of possession in the plaintiff at a time more than four years before the commencement of the suit is clearly bad. A complaint to be good must show a cause of action in favor of the plaintiff and against the defendant existing at the time the action is commenced.
Id. — Estates of Deceased Persons — Right of Action of Administrator— Cessation of Authority.—An administrator cannot maintain an action to recover personal property belonging to the estate after he has ceased to be administrator of the estate.
Id.—Sale to Administrator—Payment of Judgment Due Estate — Descriptio Personjb. —A bill of sale of personal property to an administrator by a judgment debtor of the estate, in consideration of the payment and satisfaction of the judgment by the administrator, passes title to him individually, and not as administrator, if all other things necessary to pass title to personal property were performed. The reference to the administrator should be regarded as descriptive of the person.
Id. —Agency — Attorney and Client. —A hill of sale made to an administrator by the procurement of his attorney, who received the purchase-money from the defendant to buy the interest of the partner of defendant in certain personal property previously sold by the defendant to the administrator, said purchase being made to prevent a judicial sale thereof at the suit of such partner, passes no title to the administrator which he can assert against the defendant, if such bill of sale to the administrator was not authorized by the defendant.
Notice of Motion for New Trial — Statement — Appeal.—It is not necessary to bring the notice of intention to move for a new trial to the appellate court, or to make it part of the statement.
Opinion — Works
Works, J. The respondent brought this suit against the appellant to recover certain personal property, consisting of live-stock and a wagon. The complaint avers that the plaintiff was the owner and entitled to the possession of the property on the twelfth day of August, 1880, and the complaint was not filed until the fifteenth, day of December, 1884. There was no demurrer to the complaint, but the point is made in this court that it "does not state facts sufficient to constitute a cause of action. A complaint to be good must show a cause of action in favor of the plaintiff and against the defendant existing at the time the action is commenced. This [270]complaint does not show this, but if it states a cause of action at all, shows that it existed more than four years before the commencement of the suit, and for that reason the complaint is clearly bad.
There is nothing in the-complaint to show that at the time the action was commenced the plaintiff had any ownership or right to possession of the property, or that the defendant had possession of it wrongfully.
It is further claimed that the verdict of the jury in favor of the plaintiff is not sustained by the evidence. The facts, as disclosed by the evidence, and upon which the plaintiff relies, are, in substance, as follows: —
The plaintiff was the administrator of the estate of Cord Pope, deceased, on the eleventh day of August, 1880, and at that time the defendant was indebted to the estate upon a judgment, and executed to the plaintiff, as administrator of said estate, a bill of sale for a large amount of personal property, including the property in controversy here. On the following day the plaintiff, in his individual capacity, executed to the defendant a lease of this same property for the term of one year.
It is claimed by the plaintiff that the bill of sale was an absolute conveyance of the property in satisfaction of the judgment due the estate, and so it appears to be upon its face, while the defendant claims that the bill of sale was executed as a mere security for the payment of the debt, and that the lease back was made upon an express verbal agreement between the parties that the defendant should hold the property under the. lease and pay the rent, which was to be applied in satisfaction of the judgment, and upon the judgment being so satisfied, the property was again to be his.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)