WALDEN v. MURDOCK, 23 Cal. 540

Crocker, J. delivered the' opinion of the Court—Norton, J. concurring specially. The plaintiff sues to recover damages for the seizure and conversion of one hundred and seventy-five head of cattle, claimed by him.

The defendant justifies under a writ of attachment in his hands, as Sheriff, issued at the suit of one Wilson against one Wells, the plaintiff’s vendor. , The cattle in controversy were part of a large lot bought by the plaintiff of Wells on the twenty-eighth day nf November, 1860, in consideration of the plaintiff’s note for two thousand dollars and a debt of eight hundred and thirty-six dollars, besides interest due from Wells to the plaintiff; and also a debt of six hundred and fifty dollars due one Crow, on which the plaintiff was surety.

A bill of sale of the property was executed to the plaintiff on the twenty-ninth of November. The attachment had been issued at the time of this sale, but it was not levied on the property until the thirtieth of November. On the part of the defendant, it was contended, that there was no delivery or continued change of possession in the sale to the plaintiff, as required by Sec. 15 of the Statute of Frauds; that it was therefore fraudulent and void as against the defendant, who was a creditor of the vendor.

The verdict and judgment in favor of the defendant was rendered June 14th, 1861, and an order overruling a motion for a new trial was made June 10th, 1862, and the notice of appeal from the judgment and order was filed August 4th, 1862—within sixty days from the date of the order overruling the motion for a new trial, but more than one year from the rendition of the judgment.

The respondent contends, that this Court has no jurisdiction of the appeal from the judgment, it not having been taken in time; and that this Court cannot take any action affecting the judgment, under the appeal from the order denying a new trial, for the same reason. In the case of Hanscom v.

Tower (17 Cal. 518), there was no appeal from the judgment, but only from the order refusing a new trial; and the Court in that case say, in answer to the same objection: “ The appeal from the order refusing a new trial brings up the whole record; and there is nothing in the point that error cannot be assigned upon the judgment roll.” Under this appeal, this Court has a clear right, should it be satisfied that the Court erred in refusing a new trial, to reverse the order and grant a new trial, the effect of which is to vacate the judgment. This objection is therefore overruled.

It is also contended, that the statement filed in the Court below, on the motion for a new trial, having been filed before the order appealed from, must be disregarded. The rules relating to statements and bills of exceptions were frilly laid down by this Court, in the case of Towdy v. Ellis (22 Cal. 650). Under the principles as there announced, this objection is untenable. So, in the case of Louchs v.

Edmondson (18 Cal. 203), it was held, that on appeal from an order granting or refusing a new trial, there is no necessity for preparing a statement on appeal, the statement on motion for new trial being sufficient.

At the trial, the plaintiff asked the Court to give the following instruction, which was refused, and this is assigned as error: “ If the jury shall believe from the evidence that Wells was indebted to the plaintiff on the twenty-eighth of November last in the sum of two notes—the one from Wells to Walden for eight hundred and thirty-six dollars and interest, and the one from Wells as principal and Walden as surety to Crow for six hundred and fifty dollars and interest—in all some $1,800 or thereabouts—it was lawful for Wells to sell and Walden to buy all of Wells’ cattle at a fair price and in payment of said debt, although the jury should further believe that said Wells was at the time in insolvent circumstances, and Walden knew it; and although such sale and transfer operated as a preference to said Walden over any other creditor or creditors, and although Walden may have known that other creditors would be thereby defeated of their debts.” If the instruction had been limited to a statement that a bona fide sale of property by a debtor in insolvent circumstances to his creditor, in payment or satisfaction of his debts, is not fraudulent, merely because such creditor thereby obtains a preference over other creditors, and he may be aware at the time that it will have the effect of defeating the collection of other debts, it would have been proper, under the decisions of this Court. (Dana v.

Stanford, 10 Cal. 277; Kinder v. Macy, 7 Id. 206.) But such sale must be bona fide, a point which is ignored in the instruction as asked ; and it is therefore erroneous to that extent, and the Court did not err in refusing to give it in that form. Besides, the refusal did not injure the plaintiff, as the Court gave another instruction, embodying substantially the same principle relied upon in this instruction. The important question involved in this case relates to the delivery of the cattle to the vendee.

It seems that the sale from Wells to the plaintiff was of about five hundred head of cattle, about two hundred of which were at the time in a field of the vendor’s; and the plaintiff, immediately on the day of sale, drove them over to his own ranch and put them in an inclosure of his own. There is no doubt as to the sufficiency of the delivery of this portion of the cattle. The remainder not thus driven from Wells’ field to the plaintiff’s were ranging upon open, uninclosed lands in the neighborhood, with the cattle of other persons, as far as twenty or twenty-five miles around.

The vendor went out on the plains with the plaintiff and pointed out to him about fifteen to twenty head, which the latter took possession of, and the vendor pointed out the range and told the vendee to take the whole; but no further act of delivery or taking possession seems to have occurred, except the execution of ■ the bill of sale, in which the cattle are described as having the brand of the vendor, which is set forth therein. It was these cattle that were attached, and are now in controversy.

On this point the Court, at the request of the defendant, gave the following instructions,which are now assigned as error: “That if, in the present case, the cattle alleged to have been sold by Wells to the plaintiff were susceptible of actual delivery, and could have been brought under the actual control or within the actual possession of the plaintiff, as by being collected or picked out and actually delivered to him or his agents, and this was not done, the sale was void as against the creditor, Wilson, and the defendant is entitled to a verdict.

That the sale of cattle grazing on the plains within certain ranges, if they can be coEected together and dehvered, is not valid as against attaching creditors without such dehvery; that if they can be cohected and brought within the personal supervision and control of the party purchasing, a mere transfer by biH of sale, whEe they are running loose on the plains, is not good in law as against such attaching creditors.” This question as to what wül constitute a vahd deEvery and a continued change of possession in a sale of stock ranging at large over the immense uninclosed plains in this State, is a most important one, deeply affecting the interests of those dealing in that kind of property.

It not only affects the right of the vendee as against the claims of the creditors of the vendor, but also as against his subsequent vendees. The difficulties attending a deEvery by securing to the vendee the actual control of such stock, often wHd and hard to manage, are great; but if in addition to that he is required to keep them under his actual control, and not aEow them to pasture upon their accustomed range, in order to establish a continued and exclusive possession, the difficulty becomes almost insurmountable.

The difficulties growing out of the ownership by numerous parties, of vast herds of stock roaming over our extensive plains with their rapid increase, even in cases where there is no contest between adverse claimants to the same animals, are great, and the Legislature, in order to prevent controversies, and to secure the evidence of ownership in a practicable mode best adapted to the circumstances of the country, has passed laws regulating the marking, branding, and counterbranding of stock, and requiring the owners to give rodeos at stated periods of the year, for the purpose of separating their stock, and marking and branding it so as to designate the owner. (Wood’s Dig. 542, 659.) These laws are imperative in their character, and are required by the wants and necessities of the country.

Under the rodeo law, the owners of cattle in the county where the stock in controversy ranged, were required to give one general rodeo between the first of March and the thirty-first day of August of each year; and Sec. 9 of the act provides that “ no person shall be allowed to mark or brand any portion or the whole of his cattle, at any other time or in any other manner than as prescribed in this act; and whoever shall act to the contrary will subject himself on conviction before any Justice of the Peace, to a penalty of not les§ than one hundred dollars nor more than five hundred dollars, at the discretion of the Justice.” It is clear, that if the plaintiff had collected together the cattle purchased by him, and marked them with his own mark and brand, and then let them go, to pasture on their accustomed range, that would have constituted a good delivery and continued change of possession.

But the third

section of the law provides that “ no owner of a stock farm shall be required to give a rodeo from the first day of November to the first day of March in each year, except on a contract for the delivery of cattle, or on a legal demand from the Sheriff or constable of his county, having an execution against the owner, and demanding a rodeo for the levy or delivery of cattle.” Sec. 1 of the same act, requires that four days’ previous notice of such rodeos shall be given to all the owners of adjoining farms, in order that parties interested may meet for the purpose of separating their respective cattle.

Sec. 7 of the act respecting marks and brands provides, that “ any person or persons selling cattle which are not intended for slaughter, or any horses, mares, mules, jacks, or jennies, shall be required to counterbrand them on the shoulders or give a written descriptive bill of sale, etc.” It is clear, that under the Statute of Frauds, the parties are entitled to a reasonable time in which to complete a delivery of personal property which had been commenced immediately after the sale, and under these statutory provisions the plaintiff was entitled to a reasonable time after the purchase to prepare for a rodeo, and to give the proper notices thereof, in order that he might separate the cattle purchased by him from the stock owned by others, and to properly mark and brand it; and in the meantime the rights acquired by his purchase will not be lost.

As to what will constitute a reasonable time in such cases, will depend upon the facts and circumstances of each case. . It is evident that he was not allowed any such reasonable time in the present case, as the Sheriff levied the attachment and proceeded to collect the cattle on the thirtieth of November, being the next day after the bill of sale was executed.

The instructions given by the 'Court overlook and disregard entirely these important provisions of the statute regulating the delivery, as well as the necessity of giving the parties a reasonable time to complete the delivery, of cattle, and are in direct conflict therewith. The Court therefore erred in giving these instructions. The appellant contends that the “ written descriptive bill of sale,” mentioned in the last

section above referred to, is intended as a substitute for a delivery by actual transfer of the possession and control of the stock. It is evident that such is not the meaning of the statute.

The law was designed to establish a rule by which the marks and brands of stock should be evidence of ownership; and upon a sale, where the lives of the animals were intended to be preserved, the vendor was required to put his counterbrand on the animals sold; and thus, while they would carry with them the evidence of his former ownership by his mark and brand, they would at the same time show a transfer by his counterbrand; but where it was not convenient to thus counterbrand, he was required, as a substitute, to give a “ written descriptive bill of. sale,” which would equally show what animals he had sold, and estop him from claiming title evidenced by his brand.

The intention clearly is to prevent the vendor from subsequently claiming the cattle, because they carry his mark and brand, and not to dispense with the delivery required by the law to make the sale valid as against creditors and subsequent purchasers. It seems that at the time of executing the bill of sale, Wells delivered his branding irons to the plaintiff—and this is relied on as a circumstance showing a delivery. Such a fact has no effect upon this question of delivery. It was good as a delivery of the branding irons, if they were included in. the sale, but not as a delivery of any other property..

The judgment and order refusing a new trial is reversed, and the cause remanded for a new trial.