Hart v. Mead

Foote, C. This action was brought by the plaintiff, Nancy J. Hart, to recover of the defendant, as the sheriff of Fresno County, certain cattle alleged by the plaintiff to be her property and wrongfully taken on an execution against her father, A. W. Bolton, or the value thereof.

The cause was tried before a jury, who found a verdict for the plaintiff for the recovery of twenty-three head of cattle, or for the sum of $575 if recovery of the property in dispute could not be had. Judgment thereupon followed.

Upon motion, the court granted a new trial conditionally, that is, unless the plaintiff would consent to a modification and reduction of the judgment to the sum of $414; which consent, as required, being given, and the modification made, a new trial was not awarded. From the order made in the premises, and from the judgment, the defendant has appealed.

The contention of the defendant is in the main that,— 1. The evidence did not justify the jury in finding the sale of the cattle in dispute to the plaintiff from her father, A. W. Bolton, the judgment debtor, to be bona fide, under the provisions of section 3439 of the Civil Code; and 2. That, supposing the sale to have been shown to be in fact untainted with fraud, the conditions imposed by section 3440 of the Civil Code were not sufficiently complied with, under the evidence, to justify the jury in finding the sale of the property involved here to the plaintiff by A. W. Bolton to have been valid.

The plaintiff, it seems, was a young widow, who had [246]been living in the household of her father, A. W. Bolton, most of the time since January, 1885.

She testified that the cattle in dispute were in her possession on the twentieth day of January, 1887, the date of the levy of an execution on a judgment against her father and in favor of his creditor, Mr. Beid; that she had bought them from her father on the 2d of September, 1885; that the cattle at that time were part of an undivided band known as the “pot-hook” band of cattle, owned in undivided shares by J. J. Westfall, a half-interest, J. B. Westfall, and A. W. Bolton, each an undivided one-fourth interest.

She bought the interest of Bolton in the cattle, and also, in addition, two saddle-horses, and a mare and two colts. For the whole property she executed her note for eight hundred dollars and received a bill of sale-for it. This bill of sale was recorded by her on the 16th of September, 1885, in book G of the miscellaneous records of Mariposa County, the range of the cattle being in both that and Fresno counties. Nothing except the cattle is involved in this suit.