HODGKINS et al. v. HOOK et al., 23 Cal. 581

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. This is an action against the Sheriff of San Joaquin County and others, to recover the possession of a number of cattle, horses, and other personal property, claimed by the plaintiff under a bill of sale executed to him by one Lyons, bearing date August 1st, 1861. The defendants justified the taking under a writ of attachment issued in favor of one Golding against said Lyons, and the question involved was the validity of the sale to the plaintiff".

It seems that Lyons, in the summer of 1861, was the owner of a large ranch on the San Joaquin River, with about one thousand head of cattle, one hundred and fifty horses, a quantity of lumber, and other personal property, all of which he sold to one Johnson about July 1st, 1861.

On the first of August, Lyons, Johnson, and the plaintiff made an arrangement by which the plaintiff paid Johnson $6,000, and thereupon Johnson reconveyed all the property back to Lyons, and the latter thereupon conveyed the real estate to the plaintiff, for the consideration, as expressed in the deed, of $2,000 ; and also executed to him a bill of sale of all the personal property for the consideration therein stated of $4,000. The cattle and horses were pasturing on the ranch and the adjoining lands.

The property was delivered to the plaintiff at the time of the sale; at least, no question is raised upon that point; but it is contended that the plaintiff did not retain the actual, continued, and exclusive possession of the property, but that Lyons exercised, to some extent, acts of ownership over it. It does not appear that either just before or at the time of the sale to the plaintiff, Lyons was residing upon the ranch, but it seems to have been occupied by one Congrado, a vaquero, who had charge of the stock.

At the time of the sale, the plaintiff hired the same person to continue on the premises and take charge of the stock, which he did. Lyons did not reside on the premises after the sale, nor was he about -there, except occasionally. The attachment of Golding was not levied on the property until May 21st, 1862. During the intermediate time there was some evidence, very slight in its character, that Lyons exercised acts of ownership over the property, by giving some directions to Congrado, and other acts; but it does not appear that this was done with the knowledge or consent of the plaintiff.

We do not think the evidence on this point is sufficient to justify us in disturbing the verdict of the jury. The evidence was of such a character as made it proper to submit to the jury the question, whether or not there was an actual and continued change of possession in the plaintiff after the sale to him. When the facts are undisputed, it is a question of law whether these facts constitute a continued and exclusive possession in the vendee.

In this case, many of the suspicious circumstances are explained, and others have very little weight in the absence of proof of knowledge or consent on the part of the vendee. Some of the facts are similar to those in the case of Montgomery v. Hunt (5 Cal. 366), in which the sale was upheld by this Court. It is also objected that the sale was void under the eleventh

section of the Statute of Frauds. But there is no evidence that the sale to the plaintiff was made in trust for the use of Lyons. There was no proof of any private understanding between the parties to bring the case within the rule laid down in Chenery v.

Palmer (6 Cal. 122.) It is also urged, that the Court erred in refusing the following instruction asked by the defendant: “ If the jury believe, from the evidence, that Lyons drove off and sold some of the cattle, and exercised other acts of ownership and control over the same after the alleged delivery to Hodgkins, and that it was in the power of Hodgkins to produce evidence to explain Lyons’ connection with the property, and he failed to introduce such evidence, the facts are to be taken most strongly against the party having such evidence and failing to produce it.” The matter referred to in this instruction occurred several months after the sale to the plaintiff, and there was no evidence that the alleged act was done with the knowledge or consent of the plaintiff; which latter fact is an important one when it is sought to affect the rights of the plaintiff by the acts of Lyons, and which is not referred to in the instruction.

We are not aware of any principle of law which makes the weight of evidence depend upon any such circumstance as that relied upon in this instruction. The weight of the evidence referred to was certainly not increased by the fact that it was not rebutted, though it might have been lessened by explanatory evidence. The plaintiff may have considered that the circumstances of the case sufficiently explained the matter, without introducing evidence, if any he had, specially relating to that point. The judgment is affirmed.