Ingraham v. Byers ( 1915 )

Opinion by

GALBRAITH, C.

This was an action in replevin prosecuted for the purpose of trying the title and the right to the possession to two certain mules of the value of $125 each. The plaintiff claimed to be the owner of the mules. The defendant claimed title through purchase at a judicial sale upon execution issued on a judgment in his favor and against Hugh Ingraham and G. A. Ingraham. There was a trial to the court and a jury, and verdict for the defendant, upon which judgment was rendered, adjudging title and the right to possession to the mules to be in the defendant, and against the plaintiff for costs. From this judgment an appeal was prosecuted to this court.

The errors assigned are to the denying of the motion for a new trial, and to the giving, and refusing to give, certain instructions.

The testimony in regard to the title and ownership of the mules was conflicting, and is sufficient to support a judgment for either party. If the jury had been properly instructed as to the law arising upon the issues in the cause, the judgment would be affirmed. It is apparent from an examination of the instructions of the court to the jury that the issues arising upon the evidence were not clearly stated, and the jury were not correctly advised as to the law applicable to the issues. In order to overcome and defeat the claim of 1 title and ownership in the plaintiff it was necessary for the defendant to show that one or both of his debtors had title to the mules; that is, that either Hugh Ingraham or G. A. Ingraham owned the mules at the time they were seized under the execution. It appeared from his testimony that he had been acquainted with the mules for more than two years; that he had observed Hugh and G. A. Ingraham, as well as the plaintiff, using them; that he examined the mortgage records of the county and found that Hugh Ingraham had given a chattel mortgage on the mules to one Partain, and from this evidence he concluded that Hugh Ingraham was the owner of the mules, and directed the officer to seize them under the execution. It was shown on behalf of the plaintiff that he had expressly authorized his brother, Hugh In-graham, to mortgage the mules to Partain, but that he did not convey his title in the mules to Hugh, and still claimed title, subject to the lien created by that mortgage. The law is settled in this state that the doctrine of caveat emptor applies to‘judicial sales, and that'the purchaser at such sales takes only such title in the property purchased as the judgment debtor had, and that if the judgment debtor had no title the purchaser at a judicial sale acquires none. Shafer v. National Cash Register Co., 16 Okla. 117, 82 Pac. 646.

In the case of Lockwood Bros. v. Frisco Lumber Co., 22 Okla. 31, 97 Pac. 562, the second paragraph of the syllabus reads:

“Simply intrusting the possession of chattels to another by the owner under a conditional executory contract of sale is insufficient to estop the owner from setting up title thereto against an innocent purchaser thereof for value and without notice of the condition from the person so intrusted.”

The court did not correctly state the law arising upon the issues in this case in its instructions Nos. 5 and 6, nor in any other of its instructions, to the jury, and refused to give instructions requested by the plaintiff, which fairly stated the law on the issues. No. 15, which was refused*'reads as follows:

: “Gentlemen of the jury, you are instructed that the defendant would not be entitled to the possession of the mules in • controversy, or base his claim of ownership thereon, under the sale on the execution and his purchase thereof as testified by him, unless the mules in controversy at the time they were taken and sold under said execution, were the property of either Hugh In-graham or G. A. Ingraham, the execution debtors in said case.”

And No. 16, which was refused, reads as follows:

“Gentlemen of the jury, you are instructed that the owner of the property may allow a person not the owner thereof to mortgage it as security for the debt of the person not owning it, but such action on the part of the owner does not divest his ownership thereof, or make the property the property of the person mortgaging it any further than to make it liable for the debt to secure which it was mortgaged. And if you believe from the testimony in this case that the múles in controversy, at the time they were mortgaged to John Partairi by Hugh Ingraham, were the property of Beal Ingraham, the fact of Hugh Ingraham’s mortgaging the mules to Mr. Par-tain would not destroy Beal Ingraham’s' ownership thereof further than to make the mules liable for the payment of the debt for which they had been mortgaged.

“And such permission on the part of Beal Ingraham for his brother, Hugh, to mortgage the property to Par-tain would not give the defendant in this case any right to levy an exceution upon the mules in controversy, or to sell them under such execution, upon a judgment against Hugh Ingraham and G. A. Ingraham.”

It was error in the trial court to refuse to give these instructions, inasmuch as the jury had not been otherwise correctly advised as to the law arising upon the issues made by" the pleadings and evidence in this case. St. L. & S. F. R. Co. v. Crowell, 83 Okla. 773, 127 Pac. 1063; Sanders et al. v. Cline, 22 Okla. 154, 101 Pac. 267.

We therefore recommend that the judgment be- reversed, and the cause remanded for a new trial.