Carr v. Ryan ( 1879 )

Peck, J.

This is an action of replevin by Ryan against Carr. The petition is in common form, for the wrongful detention of two horses, a wagon and double harnesses from Ryan as the owner, and as entitled to the immediate possession of the property. Carr admitted the detention, but justified it by having taken the property under an execution, issued from the first district court against one J. D. Brasel to himself the sheriff of Laramie County, and holding it under that levy, alleging that at the time of the levy, Brasel owned the property, or had a leviable interest in it, or that it was subject to levy under the execution. Under the issue thus raised, the sheriff claimed that Ryan’s possession was derived from Brasel, by an agreement void as to creditors, because intended to hinder, delay and defraud them. This is the only proposition that we shall consider in disposing of the judgment below, which was rendered for Ryan on a trial without a jury.

The testimony introduced by Ryan, consisting of a mortgage, his own and the evidence of Brasel, established the following facts, and subjects him to their legal effect. On and under date of the 14th of March, 1878, Brasel executed to Ryan a chattel mortgage of two double teams (of which one is the team in suit) and. other property, conditioned to secure the payment of a note described as a note from Brasel to Ryan of the same date, due at one year, for. $650, and interest, conferring upon Ryan in ease of default, full power to take possession of the property, convert it into cash,' and apply the net proceeds upon the note, accounting to Brasel for whatever surplus there might be; and reserving to Brasel the full right of use and possession of the property until default. The mortgage was duly acknowledged on the same day, and filed for record on the 26th day of the same March. The note was in part fictitious; when cross-examined, Ryan admitted with unmistakable explicitness, that it was $100 in excess of its real consideration. Brasel was then insolvent, and this was known to Ryan; and sickness prevented the former from attending much to business. They testified in effect that, contemporaneously with the execution of the mortgage, and as a part of its transaction, it' was arranged between them that Ryan should take possession and charge of the teams; and so retain them, until he had got out of them (which means out of their usufruct) the amount of the note ; and that he took, and had since continuously retained possession and charge of them accordingly, excepting for about two days, when they were in Carr’s possession under the levy. No other attempt at change of possession was made, than that Ryan took ostensible control of the teams, so far as to find work for them with outside customers or third persons, and to collect their earnings. When the mortgage was delivered, he was, and for about seven months next before, had been in Brasel’s employment as a teamster at day wages, and so continued in his employment from the giving of the mortgage until the trial; during all this period, the teams were kept at Brasel’s expense, the horses in his stable; the earnings from outside parties, Ryan applied to his wages and the care of the team, regularly handing the surplus to Brasel. As his teamster, drove or teamed with each of them, and when they were not out at work for third persons under hire for his benefit, they were at work for him on his premises; and Ryan neither received, nor attempted to obtain, nor was it the intention of himself or Brasel, that he should derive any benefit from, or apply any of the usufruct of them upon the note, — our unhesitating construction of these facts is, that there was no substantial or real change of possession from Brasel to Ryan; that Ryan’s relation to Brasel in the matter was that of an agent to bis principal, not that of a creditor to his debtor; that all that the former did about the teams after the giving of the mortgage, was, if ostensibly for himself, in fact for the benefit of the latter, and that the entire arrangement between those parties, and their action under it, were covi-nous in the interest of Brasel, were made and pursued with the intent to hinder, delay and defraud his creditors, and were therefore, void; consequently, the levy was good as against Ryan, and that he has no right of action.

The judgment is reversed with costs.

Judgment reversed.