Vitoreno v. Corea

SHARPSTEIN, J. This is an action to recover the pos~ session of personarJ property. The jury rendered a verdict in favor of the~ laintiff. Defendant moved for a new trial, upon a state rient. The motion was denied, and defendant appeals porn the judgment, and order denying his motion for a n ~w trial.

The statement ~hows that after the jury had been sworn, the plaintiff's attorney stated the issue and his case as follows: -

"Mr. Chase, I ~vill first read to you the pleadings which show the i~sues of this case, and then will state briefly the facts expect to prove under those issues. [Reads the comp1a~nt and answer.~

"Now, these par~ies, the plaintiff and defendant, live over in the soutliea~t part of the county, beyond Clayton, and are farmers. The plaintiff is in very good circumstances, and owns the property which is described in the complaint and ant~wer. The defendant's relative came [71]to the plaintiff, and without any cause whatever made up a story,-—a lie, in fact, — and told the plaintiff that one Thomas Williams was about to attach him, the plaintiff (the plaintiff was owing him), and that he had better put his property over in his brother’s hands; he had real estate there, he had hay, he had property a good many times the value of the property than what the plaintiff was owing this Williams; but the defendant’s brother worked upon the fears of the plaintiff in that way, telling him that Williams was about to attach him, and that he should put his property over in the defendant’s hands, and keep it a while, and turn it back again. The facts are right there, that Williams had no idea of attaching him; he did not intend to, he knew the plaintiff was perfectly good, he had plenty of property to pay his debts, and this story was manufactured out of whole cloth. But after conversing a while, the plaintiff and defendant went to Antioch, and a pretended bill of sale of the property was made out, and the property was temporarily turned over to the hands of the defendant. At Antioch the pretended purchase-money for the property was paid out to the plaintiff, some two hundred odd dollars, — I think one hundred and fifty or two hundred dollars,— and a bill of sale was signed, and then when they got out, according to a previous agreement, the money was returned by the plaintiff to the defendant; a part of it was borrowed there in Antioch, and it was returned to the defendant and the parties it was borrowed from. Time passed along, and the defendant stated to confidential friends who lived in the community that this was only a sham sale, and the property did not belong to him, the defendant, at all; it belonged to the plaintiff, and that it would soon be returned to him. He told several that fact; that subsequently the defendant got the impression that he could hold this property, and decided that he would keep it, and some discussion arose out of it, — some lawsuits arose out it, — until the feeling between them became such that the defendant determined that he would hold the property, and the result was the bringing of this