Bloedorn v. Jewell , 34 Neb. 649 ( 1892 )

Norval, J.

This is a suit in replevin, brought by Fred Jewell to recover possession of a team of horses, harness, and wagon. The trial resulted in a verdict and judgment for the plaintiff below.

Objection is made that the verdict is not sustained by sufficient evidence, and is contrary to law. On the 1st day of April, 1889, the plaintiff in error, as sheriff of Platte county, took the property under an execution issued out of the district court of said county upon a judgment in favor ,of one George H. Stevenson and against L. H. Gerard and one L. H. Jewell, a brother of the plaintiff below. The property at the time of such levy belonged to L. PI. Jewell. Subsequently, on April 19th, the property was released from the levy and the writ returned by order of the plaintiff in execution. On the same day another execution was issued out of said court, and placed in the hands of the sheriff, who levied the same on the next day upon the property in controversy. Afterwards this action was instituted. The defendant in error claims title to the property by purchase from his brother, L. H. Jewell, while the sheriff claims the right of possession by virtue of the levy of the execution last aforesaid.

Two questions are raised, which we will briefly notice: First, Was the property transferred for the purpose of preventing its being sold to satisfy the judgment against L. H. Jewell? and second, Was the property exempt from levy and sale on execution while owned by him ?

The answer to the first question must be in the affirmative. It is uneontradicted that after the return of the first execution, and prior to the levy of the second, L. H. Jewell transferred the team, harness, and wagon to Fred Jewell, receiving in payment therefor the promissory note of the latter for $325, drawing eight per cent interest, and due in one year from its date. At and prior to the purchase, Fred Jewell had full knowledge of his brother’s indebtedness. It also appears from the evidence that the bargain was made while the first levy was in force, but by agreement of the parties the trade was not to be completed until the property was released from such levy. So soon as that was done, the note was given, and the property was turned over to the defendant in error. The transfer was made only an hour before the levy of the second execution. The transaction being between brothers, the burden was upon the plaintiff below to establish that the purchase was made in good faith and not for the purpose of defrauding the creditors of the vendor. This he failed to do.

As to the second question, we think the property was exempt while owned by L. H. Jewell. The record shows that he was the head of a family and was engaged in the business of agriculture. He had no other occupation. He had sown that year about five acres to oats, was engaged in baling hay and owned no other team, harness, or wagon. Under the provisions of section 530 of the Code the property was not liable to sale on execution for his debts. Being exempt, it was not the subject of fraudulent alienation. Such is the settled law of this state. (Derby v. Weyrich, 8 Neb., 174; Boggs v. Thompson, 13 Id., 403; Gillespie v. Brown & Ryan Bros., 16 Id., 457.)

It is contended that the defendant in error is estopped from setting up title to the property in himself, as against the sheriff. It appears that at the time of the levy of the first execution the officer left the property in the constructive possession of Fred Jewell, who promised to be responsible for the return of the same, when demanded. At the time the second execution was levied the sheriff took possession of the property and retained the same until taken from him under the writ of replevin. When this action was commenced the relation of bailor and bailee did not exist, so that the doctrine laid down in the books, to the effect that a bailee of property will not be permitted to assert title thereto in himself as against his bailor, has no application to the present case.

We observe no error in the rulings of the court during the progress of the trial. The testimony received, over the objection of the plaintiff in error, was pertinent and competent as tending to show that the sale of the property was made in good faith. We think, too, that the instructions fairly submitted to the jury all questions of fact, and that the verdict is sustained by the evidence. The judgment is

Affirmed.

Maxwell, Ch. J., concurs. Post, J., did not sit.