Dorman v. Soto

VANCLIEF, C. This action was brought to recover certain personal property (eight horses and forty tons of hay), or the value thereof. The defendant appeals from the judgment in favor of plaintiff, and from an order denying his motion for a new trial. The defendant, a constable, justifies the taking and detention of the property by virtue of a writ of attachment issued by a justice of the peace at suit of Williams against Thurber and wife, alleging that the horses and hay [622]were the property of Thurber and wife, and denying that plaintiff was the owner or entitled to the possession thereof. Plaintiff claimed title to the property by purchase from Thurber and wife, Thurber being her son in law. The purchase was evidenced by a bill of sale executed by the husband alone, as follows:

“Know all men by these presents: That for and in consideration of the sum of one dollar ($1) to me in hand paid, and other valuable consideration to me moving, I have this day sold, assigned, set over, transferred and delivered unto Asenath Dorman (widow), of Alameda county, state of California, the following described personal property, now in Contra Costa county, state of California, on the premises this day conveyed by myself and Ellen D. Thurber (my wife) to said Asenath Dorman, to wit: Eight work horses; all hay on said premises owned or belonging to me.

“Witness my hand this 20th day of August, 1892.

“A. S. THURBER.

“Witness: CARY HOWARD.”

The appellant contends that there never was any delivery of the property described in the bill of sale, and consequently that the transfer was not followed by any actual change of possession, and is therefore void as against Williams, the attachment creditor; and I think this point is well taken. Since it appears that, at the time of execution of the bill of sale, Thurber and wife had the possession and control of the property, were then indebted to Williams, the plaintiff in the attachment suit, and that the attachment proceedings were regular, the burden of proving an immediate delivery, followed by an actual and continued change of possession of the property described in the bill of sale, devolved upon the plaintiff. Yet there is no evidence sufficiently tending to prove a delivery and continued change of possession to raise a substantial conflict with the evidence to the contrary. Indeed, it is neither alleged, nor found as a fact, that there was any delivery or change of possession. But conceding that an allegation and finding that plaintiff was the owner, and entitled to the possession, is sufficient to uphold the judgment, yet such finding is not justified by the bill of sale alone, which was executed in Oakland, Alameda county, while the property described therein was on Thurber’s ranch, in Contra Costa