Stratton v. Burr

BELCHER, C. This is an action to recover the possession or value of certain personal property, alleged to have been wrongfully taken from the possession of the plaintiff by the defendant John Burr, as sheriff of the county of Los Angeles, on the tenth day of August, 1895. The defendant justified the taking of said property under and by virtue of a writ of attachment issued in an action commenced in the superior court of Los Angeles county on the tenth day of August, 1895, by one Gregory Perkins, Jr., against J. J. Stratton and [142]U. G. Stratton, copartners, doing business under the firm name of Stratton Bros. The answer denies that the taking was wrongful, and alleges that on the eighth day of August, 1895, Stratton Bros, were indebted to various persons in sums of money aggregating $992.50, and on the tenth day of the month the said creditors assigned their several claims to Gregory Perkins, Jr., who thereupon commenced said action; that, on the said eighth day of August, J. J. Stratton, for the sole purpose of preventing the creditors of Stratton Bros, from attaching said property, and to hinder, delay and defraud said creditors, without the consent or knowledge of said U. G. Stratton, entered into a secret and fraudulent agreement with Minnie E. Stratton, the plaintiff, under and by virtue of which it was agreed that said J. J. Stratton should transfer to the plaintiff all the property described in the complaint; that thereafter, on the same day, in pursuance of said secret and fraudulent agreement, said J. J. Stratton did sign- a bill of sale of said property to the plaintiff, but the same was never delivered, and the pretended sale made in pursuance of said agreement was not" accompanied by any delivery or by any change of possession of the things attempted to be so transferred.

The case was tried by the court, without a jury, and the findings were in substance as follows: On August 8, 1895, and for several months prior thereto, Stratton Bros, were copartners, engaged in the grocery business in the city of Los Angeles, and on that day were indebted to the various persons named in the answer in the aggregate sum of $992.50, and were indebted to the plaintiff in the sum of $1,115 for moneys theretofore loaned by her to them. On the same day, said copartners, for and in consideration of their indebtedness to the plaintiff, executed and delivered to her a bill of sale, whereby they sold and conveyed to her the property mentioned and described in the complaint; and the same was not made for the purpose of defrauding any person, but was executed by them and received by her for the sole and only purpose of paying the amount then owing by them to her. Said sale was accompanied by a delivery and change of possession of the property thereby transferred, and, prior to the sale, Stratton Bros, were in possession of said property. Immediately after the transfer of said property plaintiff took possession of the same, and remained in the possession thereof