Redington v. Nunan
Redington v. Nunan
Opinion of the Court
The transfer of the property sued for in this action, if made at all, was made by the assignee of the estate of Curtis in bankruptcy, and not by Curtis, so that at the time of the transfer it was the assignee who was in possession and had control of said property, and there is no evidence which tends to prove that he did not immediately deliver it to the purchaser, or that said sale was not followed by an actual and continued change of possession. Therefore, the transfer can not be conclusively presumed to be fraudulent, as against creditors of the bankrupt. Whether the property, at the time of the seizure of it by the defendant, was the property of the plaintiff, was a question for the jury, or for the Court sitting in place of the jury, to determine; and as we think that the evidence is conflicting, we can not disturb the finding upon that point. It was an inference of fact, and not a presumption of law, that had to be drawn from the evidence.
But we think that the Court erred in including in the judgment the sum of three hundred dollars for money expended by the plaintiff in the pursuit of said property. The action is for the recovery of the possession of personal property, and not for the conversion of it. This distinction was pointed out in Kelly v. McKibben, 54 Cal. 192.
The judgment must, therefore, be modified by deducting from it said sum of three hundred dollars, and with that modification it is affirmed.
Reference
- Full Case Name
- JOHN H. REDINGTON v. MATTHEW NUNAN
- Cited By
- 4 cases
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- Published
- Syllabus
- Replevin—Saxe of Personal Property—Prattd as to Creditors—Change of Possession.—In an action to recover the possession of personal property—in which the defendant justified as Sheriff, under an attachment against one C., alleged in the answer to be owner—it appeared from the evidence that the property (consisting of the stock of a drug store) was purchased by the plaintiffs’ vendor from the assignee in bankruptcy of C., and that C., who was -then in possession, was allowed to remain in possession pending negotiations for a purchase by him; that subsequently the plaintiffs made a written agreement to sell the property to 0. upon certain terms, and that, upon the failure of C. to comply with the terms of the contract, the plaintiffs took possession some time prior to the levy of the attachment. The findings and judgment were for the plaintiffs. Held: At the time of the transfer it was the assignee who was in possession and had control of the property, and there is no evidence which tends to prove that he did not immediately deliver it to the purchaser, or that the sale was not followed by an actual and continued change of possession. Therefore the transfer can not be conclusively presumed to be fraudulent as against the creditors of the bankrupt. Id.—Id.—Id.—Sufficiency of Evidence—Finding.—Whether the property at the time of the seizure of it was the property of the plaintiff, is a question for the Court, sitting in place of a jury, to determine; the evidence being conflicting, the finding upon that point can not be disturbed. Id.—Damages—Conversion.—The action being for the recovery of possession of personal property, and not for its conversion, it was error for the Court to include in the judgment the money expended by the plaintiff in the pursuit of the property.