Young v. Aguirre

Vanclief, C. — The action is for the recovery of the possession of personal property alleged to have been wrongfully taken from the plaintiff by the defendant.

The defendant, being a sheriff, justifies the taking of the property by virtue of a writ of attachment against one Cooke, alleging that the property belonged to Cooke and was subject to the attachment.

Trial by jury, verdict and judgment for plaintiff.

Defendant appeals from the judgment, and from an order denying his motion for a new trial.

[176]The plaintiff claims the property by purchase from Cooke, made forty days prior to the attachment.

The appellant makes two points: 1. That the evidence does not justify the verdict of the jury, in that it fails to show that the alleged transfer of the property from Cooke to plaintiff was accompanied by an immediate delivery, and followed by an actual and continued change of possession; and 2. That the verdict is against law, for the reason that the jury must have disregarded an instruction of the court, as follows: “If you find that there was no actual, open, unequivocal change of possession, carrying with it the usual marks and indications of ownership, manifested by such outward signs as would render it evident to the world that the possession of Cooke had wholly ceased, and that the claims of the vendee were absolute, then you shall find for the defendant.”

The two points are substantially the same, and present only the single question: Does the evidence justify a finding that the transfer was accompanied by an immediate delivery, and followed by an actual and continued change of possession?

This question should be answered affirmatively; and appellant’s claim to the contrary is not sufficiently plausible to justify a statement of the evidence here.

I think the judgment and order should be affirmed.

Belcher, 0., and Foote, C., concurred.

The Court. — For the reasons given in the foregoing opinion, the judgment and order are affirmed.