Porter v. Bucher
Before: Haynes
Synopsis
Sale of Personal Property—Delivery and Change of Possession—Hay upon Homestead—Bona Fide Purchase by Wife from Husband — Custom as to Peed of Cattle — Question of Fact.—Where a wife living with her husband upon a farm, which he has claimed as a homestead, is the owner of cattle and horses upon the farm, which are her separate property, and purchased from her husband, the crop of bay grown upon the homestead, after it had been stacked in corrals, the gates of which she then closed and fastened, and immediately began to feed the hay to her stock, there being no question as to the bona fide of the sale, and there being evidence of a custom in that vicinity for cattle-owners who bought hay in the stack to take the cattle to the hay, and feed them there, without removing the hay, the question whether there was an immediate delivery and actual and continued change of possession of the hay so purchased is one of fact for the jury to determine.
Id.—Conversion of Hay by Assignee in Insolvency—Instruction__In an action for damages for the conversion of the hay which the wife had purchased, brought by the wife against the assignees in insolvency of the husband, wlio had replevied the hay from the husband, it is error to instruct the jury that the sale to the wife was absolutely void, for want of an immediate delivery and continued change of possession of the hay, and that it was the duty of the jury to find for the defendant.
Id.—Removal of Hay—Ownership of Bans—Joint Tenancy of Homestead —Possession of Hay.—The wife was not bound to remove the hay to other land, nor to own. the the land upon which the staclcstood, and her joint tenancy of the homestead with her husband prevented the possession of the hay from being wholly in the husband.
Id.—Feeding of Husband’s Stock for Services Rendered—Evidence—Control of Husband.—The fact that two cows and two horses of the husband were fed from the wife’s hay after the purchase, in consideration of his services in assisting to feed the wife’s stock, is not necessarily inconsistent with her ownership and possession, though it is competent evidence tending to show the husband’s possession and control.
Id. — Statute of Frauds—Sufficiency of Delivery—Actual and Continued Change of Possession—Construction of Code. — Under section 3440 of the Civil Code, requiring an immediate delivery and actual and continued change of possession of personal property sold, in order to the validity of the sale as against the creditors of the vendor, any delivery that is.sufficient to pass the title as between the parties is sufficient if it be immediate. The requirement of an “actual and continued change of possession ” was designed to exclude the idea of'a mere formal and temporary change of possession, but was not intended to require, upon a penalty of the forfeiture of the goods, that the vendor should never have any control over or use of them.
Haynes, J. This action is in trover for the conversion of hay. The plaintiff appeals from a judgment against her, and from an order denying her motion for a new trial.
Appellant is the wife of Howard B. Porter, with whom she lived upon a farm upon which her husband had duly filed a declaration of homestead, and which farm was principally used for raising hay. The wife was the owner of about one hundred and thirty head of cattle and twenty or thirty horses, which were her separate property, and were kept on the homestead.
The crop of hay for 1888, estimated at about one hundred and twenty tons, was stacked in corrals which had been used for several years for that purpose, aud from which the hay was fed to the stock. After the hay was stacked, plaintiff and her husband went to the stacks, estimated the quantity of hay, agreed upon the price, and the husband, by words, delivered the hay to appellant, who thereupon closed and fastened the gates of the corrals, made a payment of ten dollars thereon, and a few days later made another payment of thirty dollars, and, in accordance with the agreement of sale, assumed the payment of certain specified debts of the husband amounting, with the cash payments, to about eight hundred and seventy dollars, and which debts she afterwards paid.
In October, 1888, the husband filed a petition in insolvency, was thereafter adjudged an insolvent debtor, and defendant Martin became assignee. Shortly thereafter the assignee served a written demand upon the insolvent for the delivery of the hay and other property upon the farm, aud was then informed by appellant of her purchase, aud that the hay belonged to her. The assignee brought an action of replevin agaiust the husband, and took the hay. The taking under the writ was resisted by the appellant, under her claim of ownership, aud after the taking a demand for the hay was duly made, and this action was brought to recover the value of the hay aud special damages.
The cause was tried before the court and a jury, and upon the conclusion of the evidence, the court instructed the jury as follows: —
“Gentlemen of the Jury: The court instructs you first, that [458]there is no evidence which will contradict this finding, that the plaintiff entered into a contract, a purchase of certain stacks of hay; that said property was stacked in the corral usually used by H. B. Porter to stack his hay iti; that said property remained there after the sale to the plaintiff in this action by the said H. B. Porter, aud never was removed from the said corral until removed by the officer in this action; that the said premises was the homestead of both parties; that under that state of facts that they used the property apparently as they had before the sale, each assisting the one aud the other in feeding the stock of both parties from the corral, aud that therefore there was not a sufficient change of possession as intended and directed by the law to transfer the title as against a creditor. In view of this statement, I feel called upon, and it is my duty, to instruct you and give you the following instructions: —
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