Gray v. Sullivan , 10 Nev. 416 ( 1876 )

By the Court,

Hawley, C. J.:

It is claimed by appellants that there was not sufficient evidence, iipon the trial of this case, to show such an actual and continued change of possession of personal property as the law requires in order to take the case out of the operation of the statute of frauds.

The property; consisting of a team of ten animals and three wagons, with harness, etc., was purchased by respondents of Lockw.ood and Davidson, on the first day of January, A. D. 1875, for- a fair consideration. At the time of the purchase the team was hitched up and was standing in front of the Idaho Stable. Lockwood and Davidson, after executing a bill of sale of the team, delivered, the possession of it to B. T. Gray, one of the respondents, who drove it over to Shipley’s corral, and there unhitched and unharnessed it, assisted by a young man named McCall. The next morning Gray employed one William Meadows, who had been the teamster for Lockwood and Davidson, to drive the team to ¡the Lockwood and Davidson ranch for some coal-sacks that he had also purchased with the team. Gray states, as a reason for the employment of Meadows, that he had ascertained the night before that McCall did not know the way to the ranch, and not knowing the way Mmself be employed Meadows to go along, drive tbe team, and show bim tbe road. About one bour after Meadows left Eureka with tbe team, Gray started on horseback, and when be had caught up with tbe team rode with tbe teamster on tbe wagon for some distance, then left bim and rode on horseback to tbe ranch. Tbe next morning be assisted the driver in harnessing and bitching up tbe team, and during tbe day Meadows drove tbe team, as directed by Gray, and while Gray was engaged in sewing sacks and other parties were filling them and loading tbe wagons, tbe officer caine and attached tbe team as the property of Lockwood and Davidson, in a suit brought against them by Beilly and Harrison, attaching creditors.

From this brief statement of tbe evidence offered by respondents, it will be seen that tbe facts of this case are not, as. is claimed by appellants, analogous to Hurlburt v. Bogardus, for there the property, as stated in the opinion of the court, “remained in charge of the same person, at the same place, and was used in the same manner after as before such purchase.” (10 Cal. 518.) Nor similar to the case of Doak v. Brubaker, where “the cattle were left where they were before tbe execution of the mortgage,’ and under tbe control and charge of the same herdsman.” (1 Nev. 222.) Here actual possession was taken by the vendee. It was open and unequivocal, substantial and continuous, and was not taken to be surrendered back, if tbe testimony of respondents was true. The mere fact that Gray rode on the wagon is, as was argued by counsel, of but little significance. It was not, of itself, such an act as was calculated to give notice to third persons; so the mere fact of assisting to turn the wagon around tbe next day, or assisting in tbe loading of the wagon, were, of themselves, of but little importance. But all tbe facts and circumstances from the timé of the purchase must be considered in the order and manner in which they occurred, and when this is done it does appear that Gray exercised such acts of ownership as is usual for persons who own that species of property. Independent of tbe reasons assigned by Gray for tbe employment of Meadows, we tbink bis own acts tended to give notice to tbe world that be was tbe owner of tbe property. It was at all times, after tbe purchase, under bis direction and control, and was never in tbe possession of either of tbe vendors; in fact, it was shown that they, being in failing circumstances, bad fled tbe country prior to tbe levy of tbe attachment. Tbe facts of this case bring it within tbe rule announced in Stevens v. Irwin, 15 Cal. 504, which was followed by this Court in Carpenter v. Clark, 2 Nev. 244. See also Ford v. Chambers, 28 Cal. 13; Clute v. Steele, 6 Nev. 335. Tbe instructions and charge given by tbe court to tbe jury, against which appellants make no objection, were as favorable to appellants as tbe law would warrant. It is well settled that tbe employment of tbe vendor in a subordinate capacity is only colorable and not conclusive evidence of fraud. (Godchaux v. Mulford, 26 Cal. 324; Billingsly v. White, 59 Penn. State, 466.) Certainly no stronger rule ought to be adopted against tbe employment of tbe mere servant of tbe vendor. Tbe court, in Godchaux v. Mulford, discussing tbe question of the employment of the vendor, said: “It was competent for tbe defendants to prove tbe fact as tending to show that there bad been no actual and continued change of possession; but when proved it did not become conclusive of that question, * * * but only an element of proof to be weighed by tbe jury.”

We tbink there was sufficient testimony in this case to preclude tbe court from declaring tbe sale fraudulent in law, and tbe jury to whom tbe question was fairly submitted, and whose province it was to decide, found that it was not fraudulent in fact. Upon a review of tbe whole case we are of tbe opinion that tbe rulings of tbe court were correct.

Tbe judgment and order appealed from are affirmed.