NANCY J. HART, Respondent, v. O. J. MEAD, Sheriff, etc.,
Appellant
No. 12668
Supreme Court of California, Department One
84 Cal. 244; 24 P. 118; 1890 Cal. LEXIS 798
June 2, 1890
PRIOR HISTORY:
Appeal from a judgment of the Superior Court of Mariposa
County.
COUNSEL: J.
W. Congdon, for Appellant.
G. G. Goucher, Newman Jones, and R. B. Stolder, for
Respondent.
JUDGES: Foote, C.
Vanclief, C., and Gibson, C., concurred.
OPINIONBY:
FOOTE
OPINION: This
action was brought by the plaintiff, Nancy J. Hart, to recover of the
defendant, as the sheriff of Fresno County, certain cattle alleged by
the plaintiff to be her property and wrongfully taken on an execution
against her father, A. W. Bolton, or the value thereof.
The cause was tried before a jury, who found a verdict for the
plaintiff for the recovery of twenty-three head of cattle, or for the
sum of $ 575 if recovery of the property in dispute could not be had.
Judgment thereupon followed.
Upon motion, the court granted a new trial conditionally, that
is, unless the plaintiff would consent to a modification and reduction
of the judgment to the sum of $ 414; which consent, as required, being
given, and the modification made, a new trial was not awarded. From the
order made in the premises, and from the judgment, the defendant has
appealed.
The contention of the defendant is in the main that, -- 1. The
evidence did not justify the jury in finding the sale of the cattle in
dispute to the plaintiff from her father, A. W. Bolton, the judgment
debtor, to be bona fide, under the provisions of section 3439
of the Civil Code; and 2. That, supposing the sale to have been shown
to be in fact untainted with fraud, the conditions imposed by section
3440 of the Civil Code were not sufficiently complied with, under the
evidence, to justify the jury in finding the sale of the property
involved here to the plaintiff by A. W. Bolton to have been valid.
The plaintiff, it seems, was a young widow, who had been
living in the household of her father, A. W. Bolton, most of the time
since January, 1885.
She testified that the cattle in dispute were in her
possession on the twentieth day of January, 1887, the date of the levy
of an execution on a judgment against her father and in favor of his
creditor, Mr. Reid; that she had bought them from her father on the 2d
of September, 1885; that the cattle at that time were part of an
undivided band known as the "pot-hook" band of cattle, owned in
undivided shares by J. J. Westfall, a half-interest, J. R. Westfall,
and A. W. Bolton, each an undivided one-fourth interest.
She bought the interest of Bolton in the cattle, and also, in
addition, two saddle-horses, and a mare and two colts. For the whole
property she executed her note for eight hundred dollars and received a
bill of sale for it. This bill of sale was recorded by her on the 16th
of September, 1885, in book G of the miscellaneous records of Mariposa
County, the range of the cattle being in both that and Fresno counties.
Nothing except the cattle is involved in this suit.
Her father at the time of this sale owed her $ 199.81, which
was at once credited on this note; said amount was made up of $ 80 for
a horse she had sold him, $ 15 she had paid for him at a store, and $
104.81 which she paid for him to Dr. Turner on the day of the sale of
the cattle, this last amount being for some hogs coming to her from her
husband's estate, which she gave to Turner, and by the 2d of November,
1886, she had paid up the whole amount of the note.
It appears that she began, as soon as she purchased the
cattle, to ride around and look after them, as they ran upon the range,
just as her father had previously done, and that she performed from
that time on all the duties which would pertain to a man similarly
circumstanced, and in charge of and owning an interest in cattle run-on
a range of very considerable extent.
At the time of her purchase she owned some other property,
exclusive of that coming to her from her deceased husband's estate,
viz., some horses and about sixteen head of hogs. She also had
delivered to her by her father the branding-iron pertaining to this
band of cattle, and branded calves with it. On the 21st of November,
1885, she sent a written notice to the Westfalls, who were joint owners
with her of the band of cattle, that she had purchased her father's
interest in them, and seems also to have made this fact known to such
other persons as she saw. She stated further that at the time of the
purchase from her father she did not know that he was indebted to Mr.
Reid. She thus succeeded her father at once in the care of the cattle,
and looked after them as they were upon the range at the time of the
purchase, as he had previously done as part owner thereof, and
continued to be thus in control of them until about the 25th of April,
1886, when a rodeo was had, at which the cattle were gathered
up by the parties interested, and those called on to assist at it, and
divided out between the plaintiff and the Westfalls, she assisting to
gather them up and being present at the division. The cattle were in
charge of her father and J. R. Westfall when she bought, they having
gotten them from J. J. Westfall on shares.
The notice which she sent to the Westfalls as to her purchase
also stated that she having bought her father's interest in the cattle,
they must sell no more of them until a division could be had, and that
they would have to settle with her for her share of what they had sold
since her purchase, and that she had appointed her father her agent to
look after the cattle, but her father did not act under that authority
except some time in December, 1885, when, riding over the range, he
would turn the cattle back if he found them straying off the range, as
he would do for any one else.
Her father states: "We commenced gathering cattle for the rodeos
about the 11th of March, and kept on until May 14, 1886. The first
division of cattle between J. J. Westfall, J. R. Westfall, and
plaintiff took place near the Hart cabin about April 25th. I have been
in the cattle business about fourteen or fifteen years; rodeos
are usually held from March to May. After the time when I sold the
cattle to plaintiff (September 2d) a rodeo could not be held
until the spring of 1886, as the cattle and horses would be too weak
until the grass was good in the spring."
The plaintiff is corroborated in the main portion of her
testimony as to the immediate acts of possession and ownership which
she exercised over the cattle, as changed from that of her father, and
the steps which she took to notify others of the change of ownership
from her father to herself, by sundry witnesses.
It further appears that Bolton, for some time previous to the
sale, had been endeavoring to sell his interest in this band of cattle,
in order to wind up his business and quit horseback riding, and try to
pay all his creditors, who were not many, nor the amounts due them
large, and probably not more than what he owned would suffice to pay;
that the plaintiff here did not know he owed Reid (the plaintiff in the
execution); that it was uncertain at the time of the sale what the
interest in the running cattle would be worth; that she seems to have
received at the rodeo something over thirty head of cattle,
to have driven them off and taken care of them mainly in person from
that time on to the date of the levy, and to have been as assiduous in
her attention to them as a man would be of his own in a like case. From
these facts, and circumstances surrounding the whole transaction,
beside those previously stated, and others which appear in the record,
and considering the conditions attending the status of the
property sold, we cannot say that the jury were not warranted in
believing that the sale of the cattle was in fact bona fide,
and accompanied by an immediate delivery, and followed by an actual and
continued change of possession, under the terms of sections 3439 and
3440 of the Civil Code.
We perceive no error of the court in its action upon the
giving, refusing, or modification of the instructions, nor is there any
other prejudicial error shown by the record. We therefore advise that
the judgment and order be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the
judgment and order are affirmed.
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