Murphy v. Mulgrew
Before: Garoutte
Synopsis
Sale—Statute of Frauds —Insufficient Change of Possession—Husband and Wife—Horses Upon Homestead.—Where a wife purchased from her husband horses upon the homestead, upon which they both resided at the time of the purchase, and, by agreement between them, the husband took charge of them for the wife, and drove and managed them the same as before the bill of sale was made, there is no such immediate delivery and actual and continued change of possession of the property as is contemplated by section 3440 of the Civil Code.
Id.—Possession of Vendor as Agent of Vendee—Public Notice of Change.—The object of the statute is to require notice to the world of the transfer of personal property, and its efficiency would be defeated if the vendor were allowed to remain in possession of the property as the agent of the vendee, in the absence of a notice to the world of a change of ownership.
Id.—Relationship Between Parties Immaterial—Statutory Construction.—The relationship existing between the parties is a matter wholly immaterial; and the fact that a vendor and vendee are husband and wife, or parent and child, is no reason why the provisions of the statute should receive a different or more liberal construction.
Id.—Husband and Wife—Inventory of Wife’s Separate Property— Construction of Code.—Whatever may be the scope and purpose of section 165 of the Civil Code providing for the recording of the inventory of the separate property of the wife, it is not entitled to a construction, that would nullify the provisions of section 3440 as to fraudulent transfers of personal property requiring an immediate delivery and actual and continued change of possession.
Id.—Declarations of Vendor in Possession After Sale.—The declarations of the vendor as to the character of his possession after the sale, and while in the actual possession of the property, are admissible against the vendee.
Id.—Replevin—Compensation for Money Expended—Note for Attorney’s Fee.—In an action of replevin, a note given to attorneys as a fee for their services is insufficient to support a judgment allowing the amount of the note as a fair compensation for the time and money expended by the plaintiff in the pursuit of the property.
Garoutte, J. Plaintiff claims to have purchased two certain racehorses from her husband, Wyman Murphy, on January 11, 1890. On November 16, 1891, the defendant, as sheriff of the county of Sonoma, took possession of the horses under a writ of attachment in favor of the Santa Rosa Bank, and against the husband, Wyman Murphy. The sheriff refusing to return the [550]possession to plaintiff, upon demand, she brought this action to recover the property. The appeal is from the judgment and order denying a motion for a new trial.
1. The main question here presented is, do the facts disclosed by the record support the transfer by the husband to the wife,- in view of the provisions of section 3440 of the Civil Code? In other words, was there such an immediate delivery and actual and continued change of possession of the property as is contemplated by that statute? There is no substantial conflict in the evidence upon this point, and plaintiff herself testified in effect as follows regarding the transfer: “ I resided with my husband upon the homestead at the time I purchased these horses from him. He gave me a bill of sale of them at that time, and they were in the barn a short distance from the house. Upon receiving the bill of sale I put it away, and said in substance to him: ‘ You take charge of this property for me, and manage it for me.’ The horses remained at the homestead after the bill of sale the same as before, and when we moved away we took them with us. My husband drove them all this time, and managed them just the same as before the bill of sale was made.” From the evidence of the plaintiff it will be perceived that no actual change of possession of this property took place at the time of the delivery of the bill of sale; but, on the contrary, in all its surroundings it remained entirely in statu quo. Mrs. Murphy attempts to escape the legal effect of the foregoing evidence by the claim that she had appointed her husband her agent to take the possession and control of the horses for her, and, as such agent, his possession was her possession, but there is nothing to be urged in favor of such a contention. Both the letter and the spirit of the law contained in section 3440 would be defeated by the recognition of such a principle. The object of the statute is to require notice to the world of the transfer of personal property, in order that men may be able to deal with each other upon equal terms, and from a common level. The efficacy of the statute would be entirely [551]
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