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Morgan v. Miller

62 Cal. 492 Court Department Two.] Decision date 1881-01-06 Docket No. 7,234 English

Delivered by Thornton, J.:

Contents

Majority

p. 492
[No. 7,234.
Department Two.]
January 6, 1881.
ELVIRA MORGAN v. J. M. MILLER.

Headnote

Sale of Cattle—Delivery and Change of Possession—Fraud as to Creditors.—H., having cattle running at large with those of D., his tenant, sold them to the plaintiff, and the cattle were driven up into a corral, where H. said to the plaintiff, ‘ * Here are your cows that you bought;” thereupon the plaintiff requested B. to take care of the cattle, and pasture them for her, and B. agreeing to do so, the cattle were turned back into the pasture.
Held, that there was am immediate delivery and actual change of possession, and that the sale was not void as to creditors.
Appeal from a judgment for the plaintiff in the First District Court in and for the County of Ventura, Fawcett, J.; and from an order denying a new trial in the Superior Court of said county. Hines, J.
/S'. A. Sheppard, for Appellants.
Williams & Williams, for Respondent.

This action was brought to recover damages for an unlawful conversion of plaintiff’s cattle. On the trial, the jury returned a verdict for the plaintiff. Defendants moved for a new trial, which was denied, and they appealed from the judgment and the order denying a new trial. Appellants urge that they are entitled to a new trial, on the ground that the verdict is not sustained by the evidence.

It appears from the testimony that the plaintiff purchased the cattle sued for from one Higgins. The defendant, Miller, was Sheriff of the County of Ventura, and, as such Sheriff, levied upon the cattle in controversy by virtue of a writ of execution issued upon a judgment recovered against Higgins by Daly and Rogers, in the District Court for Ventura County. It is contended on behalf of appellants that the evidence shows that the sale to the plaintiff was void as to Daly and Rogers, for the reason that it was not accompanied by an immediate delivery, and followed by an actual and continued change of possession—that, therefore, the verdict is.

p. 493
not sustained by the evidence, and it should be set aside and a new trial granted. We have examined the testimony, and are of opinion that it sustains the verdict, and that there was no error in the ruling of the court below.

Judgment and order affirmed.

Sharpsteih and Myrick, JJ., concurred.