Crill v. Doyle , 53 Cal. 713 ( 1879 )

By the Court :

The bill of sale made by Grill, in his lifetime, to Whiting, recites that Grill had that day sold to Whiting all the right, title, interest, or claim of "Grill to the cattle, and that in consideration of six hundred dollars he' had on that day delivered the same to him. The cattle were then in the possession of the defendant, under a contract for their pasturage, and they remained in his possession until they were delivered by him to Whiting, after the death of Grill. The sale by Grill transferred the title to the cattle to Whiting, and was valid as between them, although no money was actually paid, and no formal credit was given for the agreed price upon the debt due from Grill to Whiting. The finding, therefore, that Grill, at the time of his death, was the owner of the cattle, was not sustained by the evidence.

As the complaint counts on the ownership of the cattle by Grill at the time of his death, his administrator is not entitled to a recovery for their wrongful conversion after his death, without proof of such ownership. The plaintiff seems to rely upon sec. 1589 of the Code of Civil Procedure, which permits an executor or administrator, for the benefit of creditors, to recover property which the decedent in his lifetime has conveyed, with intent to defraud his creditors; but the complaint does not state a cause of action of that character.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.