Damsguard v. Gunnoldson

FOOTE, C. This is an appeal from a judgment and from an order denying a motion for new trial. The plaintiff is the assignee of one Phillip Lang, who had been adjudged an insolvent, under the act of April 16, 1880, of the legislature of California. The assignee claimed in the action brought by him against Gunnoldson, that the insolvent, Lang, in contemplation of insolvency, and with a view to defraud his creditors, had conveyed certain pieces of real property to Gunnoldson, and that Gunnoldson, upon application duly made for the restitution and possession of the property, had refused to either make a conveyance of it to the assignee or to give him possession of the same, and that Gunnoldson had kept possession thus wrongfully of a certain sawmill and tract of land on which it stood, and had prevented, by his acts of pretended ownership, the assignee from getting possession of a large number of saw-logs lying and being on the mill tract of land, and sawing them up into lumber or otherwise utilizing them for the benefit of the insolvent’s estate. He further charged in his complaint that by the wrongful and deceitful acts of Gunnoldson the estate of the insolvent in his hands for distribution had been damaged to the amount of several thousands of dollars. The defendant answered the complaint and denied specifically its allegations, and set up by way of defense the fact that he had a lien upon the mill tract of land [513]for about nine hundred dollars, with interest, and that although he had a deed to the land in the. form of bargain and sale, he only claimed it to be a mortgage to secure his debt, and upon the issue thus made up the case went to trial, a jury being waived. A judgment was rendered in the court below for the plaintiff against the defendant for the sum of nine hundred and twenty-five dollars, damages and costs; the defendant’s mortgage was recognized as a lien upon the property to secure his debt and interest; and the plaintiff, subject to this lien, was declared to be the owner of the property set out in the deed to Gunnoldson from Lang. A motion for a new trial was made and denied, and this appeal was taken.

The specifications of the insufficiency of the evidence state, among other things, that the court found contrary to the evidence in its sixth, seventh, eighth, ninth and tenth findings of fact. The main questions under those findings were: Had the defendant wrongfully and fraudulently withheld possession of the mill tract of land from the plaintiff, after due notice to yield its possession, and that of the sawmill and logs and appurtenances ? And, if so, whether, by these wrongful and fraudulent acts, the plaintiff had been kept out of possession of the mill, land, saw-logs, etc. And whether the defendant had thus caused damage to the estate of the insolvent in the hands of the assignee; and, if so, how much. It is plain that upon all these questions the evidence was conflicting, as a reference to the statement on motion for new trial—which is exceedingly full—shows. The letter of the defendant of itself makes it evident that he refused to deliver possession of the premises demanded of him. The testimony of John Meyer, P. Lang, Mrs. Annie Lang and J. Howser certainly went to prove the effort made by the defendant to induce the plaintiff to believe that he (the defendant) was the absolute owner of the land and sawmill standing on it, and would not yield the possession of them to him, perhaps with a view to a forced sale and the sacrifice of the saw-logs at such sale, which might in that event be bought by the defendant at a nominal price, perhaps with the view and hope that he might be permitted to hold on to the land and sawmill as an owner in fee simple.