Masters v. Teller

1898 OK 70, 56 P. 1067, 7 Okla. 668, 1898 Okla. LEXIS 77

• Court: Supreme Court of Oklahoma
• Decided: July 30, 1898
• Status: Published

Opinion

Opinion of the court by

McAtee, J.:

The errors complained of and argued in the brief were that the evidence did not, as a matter of law, sustain-the verdict, and that the case should have been taken from the jury; and that Teller was guilty of culpable negligence, and probably, fraud, and that the verdict was not sustained by the evidence, and that the instruction of the court quoted in the statement of facts was erroneous.

We cannot sustain the contention. No averment of fraud -was made against the plaintiff by the answer of the defendant; no instruction to that effect was asked of the jury. If it was ever intended to be used as a defense, it was abandoned, and the instruction complained of is a correct statement of the law, except as to that part of it which states that, “if the jury find that the plaintiff turned the property over to William Morgan to keep and care for said property, that said property was in the actual possession of said plaintiff, Teller,” etc. This was technically incorrect, but only technically. The statement should hare been that, “if the jury find that the property was in the constructive possession of the plaintiff, Teller,” etc. This error was, so far as the statement of the law was concerned, as applied to the facts of this case, merely technical, since, if the court had used the word “constructive,” the legal result would have been the same, since, as to constructive, as well as the actual possession, in the language of the instruction, the possession of the agent is the possession of the principal.

The law will not permit a retention of possession after the sale, which would give to- the vendor a false credit, and deceive the creditors, but, as is said by Bump in Fraudulent Conveyances, pp. 169-171, that this can only occur in the case of actual possession by the vendor, for wherever there is a merely constructive possession, the persons are put upon inquiry. Such a possession does not give a false credit. It is, therefore, a general principle that a constructive possession will pass upon a constructive delivery. A sale is sufficient if it places the property at the disposal of the vendee and gives him, not only the title, but constructive possession of the property, with power to reduce it to an actual possession at his own pleasure, and that, even if the property had remained in the possession of the vendor, W. J. Morgan, the transfer would have been sufficient, since notice .to the bailee is all that is required.

And the circumstances of the sale and its good faith and genuineness, and all the circumstances which tend to exhibit the transaction in its true light, are matters of consideration for the jury, who must find from the evidence whether the sale was in good faith and whether there was a sufficient change of possession to the personalty as against the vendor’s creditors. (Renninger Spatz, [Pa.] 18 Atl. Rep. 405; Claflin v. Rosenberg, 96 Am. Pec. 346.)

But the defendant’s pleading and testimony were insufficient to constitute a valid defense, since the pleading did not set up that the property was taken under a valid execution and judgment, and the evidence did not show that the property was taken under a valid writ, issued by a court of competent jurisdiction, particularly-describing the property taken with sufficient certainty to-identify it. Where the sheriff: takes and carries away the property, so much must be shown by way of justification. If the record does not disclose this much,, the action of the sheriff will appear as a trespass without warrant. (Taylor v. Morrison, 73 Ill. 566; Shultz v. Frank, 1 Wis. 352; Sexey v. Adkinson, 34 Cal. 346; 2, Greenleaf on Evidence, 629.)

The judgment of the court below will, therefore, be affirmed.

All of the -Tuctices concurring.