Asbill v. Standley

HAYNES, C. Appeal by defendant from a judgment rendered against him and from an order denying a new trial. The plaintiffs brought replevin against the defendant for the recovery of certain mares and colts seized by the defendant as sheriff on an attachment issued against the property of the plaintiff’s husband. The cause was tried before a jury, and the plaintiff had a verdict and judgment for return of part of the property, or for $1,600, the value thereof, if a delivery thereof could not be had.

We have looked carefully into the questions presented by the record upon the motion for a new trial, and find no error of which the appellant can complain. The instructions to the jury were full and clear, especially those given at the request of the defendant, and, as they do not involve any new principle of law, a discussion of them would serve no useful purpose.

The principal question in the case is the oft-recurring one as to what constitutes “an immediate delivery, and an actual and continued change of possession,” and upon this question appellant contends that the evidence does not justify the verdict. The plaintiff gave evidence tending to prove that her husband was indebted to her, and sold her sixteen mares in satisfaction of the debt. These mares were pastured on land of the husband prior to the sale, and were branded with his brand. That at the time of the sale they were brought to the corral, and vented with the husband’s brand, and then branded with plaintiff’s brand. A bill of sale of the mares was also given. They were then turned back on the range where they had been before, and cared for, at sea[667]sons requiring care, by men hired and paid by plaintiff. One of the means provided by statute for designating the ownership of stock, whether horses, cattle, sheep or hogs, is by marks and brands; a mode indeed well calculated to indicate ownership, and which was in common use before the statute was enacted. If the husband’s brand had been permitted to remain upon the mares without venting, it, under the circumstances shown, would have been taken as conclusive of his ownership, as in the case of Dean v. Walkenhorst, 64 Cal. 79, 28 Pac. 60, cited by appellant. The plaintiff’s brand was different from that of her husband, easily distinguishable from it, and was not only notice of ownership, but almost the only indication of ownership possible in the case of “stock” animals which are not housed or commonly used. In McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200, also cited by appellant, the facts were materially different. There the cattle were sold by the husband to the wife. A bill of sale was given, and the cattle remained upon the husband’s farm, where both resided, as before, where all the cattle were kept and used. No other act of delivery was made, so far as the report discloses, and we may therefore conclude they were not branded. Here there was not only a bill of sale, but the husband’s vent brand was put on, as the statute requires, where branded animals are sold, and the purchaser’s brand was also put on. It was properly said in the case last cited that “it is clear that there is the same necessity of a delivery where the parties to the sale are husband and wife that there is in other eases. For this purpose the wife sustains the same relation to the husband as any other person.” In the case at bar there can be no question that there was a delivery of the property to the wife. It may have been fraudulent and without consideration, but those questions were submitted to the jury with proper instructions, and from the evidence they found that there was a consideration for the sale, and that it was not fraudulent. The sole question remaining, then, is as to the actual and continued change of possession; and the only ground upon which it could reasonably be claimed that there was not is that they were kept after the sale in the same place they were before. This court has repeatedly held that that is not conclusive. It is a circumstance which the jury may look to in determining that