In Thornburgh v. Hand, 7 Cal. 567, the rule as laid down by Starkie on Evidence is approved, which is: "If the assignment and delivery of possession were merely colorable, and the property still remained in the debtor, against whose goods the execution issued, the sheriff, it seems, would be entitled to a verdict without proof of the judgment, the plaintiff having no property in the goods."Summary of this case from Citizens' Securities Co. v. Hammel
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 7 Cal. 554 at 565.
Original Opinion of April 1857, Reported at: 7 Cal. 554.
JUDGES: On the rehearing, at this Term, Murray, C. J., delivered the opinion of the Court. Burnett, J., and Terry, J., concurring.
On the rehearing, at this Term, Murray, C. J., delivered the opinion of the Court. Burnett, J., and Terry, J., concurring. In our former opinion in this case, we considered two propositions: First, as to the refusal of the Court to allow the defendants' counsel to cross-examine the witness Thornburgh; and, second, whether the officer was required to establish anything more than the debt and writ of attachment, to enable him to attack the sale from Burtis and Foster to the plaintiff, on the ground of fraud. On the second point, we still adhere to our opinion, and notwithstanding the able argument of counsel, and the authorities adduced, we see no good reason for doubting its correctness. It will hardly be expected that we should again go into a review of all the arguments that might be adduced for or against the proposition. It may be stated, in limine, that every sale of property and personal chattels is good as between the parties, and cannot be attacked for fraud, except by a creditor, who has obtained judgment, and taken out execution, which has been returned unsatisfied in whole or part. To this general rule there is one exception, and that is in cases where the statute gives a lien upon a seizure by attachment. In the latter case, as the proceeding is of statutory origin, and unknown to common law, it is evident that all the provisions of the Act must be strictly complied with. It is a harsh remedy at best, and a party who seeks to enforce it against another, should be held to a strict accountability and compliance with the law.
The appellant contends that where the officer seizes property in the hands of a third party, which is alleged to have been fraudulently transferred, it is only necessary to show the writ and prove the debt, thereby establishing the relation of creditor, and that when this relation is established, then the sale may be attacked for fraud.
It requires something more than a mere indebtedness between the parties to justify the taking of property from the possession of a third person. A mere creditor cannot, as before remarked, impeach the sale until he shows that he has a judgment or lien; neither can the officer who represents him do so. The debt of itself gives no right to seize the property, but the attachment; and it is essential for its validity that it should have been issued in conformity with the law. If the officer seizes the property of the debtor, and the writ be regular on its face, it is a sufficient justification to him; for the defendant may, if the attachment has been improvidently issued, move to have it quashed, or bring a suit upon the undertaking, but a third party, a stranger to the record, could not interfere, and, therefore, it would seem but justice, that before any right could be established against him, by reason of a proceeding to which he was not a party, that its regularity should be shown. If the officer seizes the goods of the judgment-debtor under a fi. fa., as against the debtor, it is only necessary to show the writ; but as against a third party, it would be necessary to show both the judgment and execution, and the reason of the rule is said to be, because the party against whom the judgment was rendered might have applied to set it aside, or have reversed it on appeal if it was erroneous, but having acquiesced in it, it is presumed to be correct; while on the other hand, no such intendment would be indulged in, against one who was neither a party or privy thereto.
The counsel for the appellants have been unable to find a single authority that militates against our former opinion, except in the case of Kirksey's Trustees, etc., v. Dubose (19 Alabama, 50), in which the following loose dictum of the Judge who delivered the opinion of the Court appears: " If the attachments were regular on their face, and authorized a levy and seizure of the defendants' property, the sheriff is not bound to go beyond them and show bonds and affidavits, or that there was a subsisting debt on which they might properly issue." (Governor v. Gibson , 14 Ala. 326.)
In the first place, this expression of opinion was not necessary to a decision of the case; and in the second, if necessary, it was erroneous, being in direct conflict with the former decisions of the same Court, and of every authority cited by the appellant, and lastly, it is not supported by any reasoning of the Court, or by the case of Governor v. Gibson, which it cites, and which simply holds that " it is a good defense for the sheriff, when sued by the plaintiff, in the proceeding for not making goods available, to satisfy process under which they were seized, to show that they were taken from his possession under a writ regularly issued."
There is nothing in either of these cases to shake the decision of Crawford v. Mead . The counsel for the appellant relies on the case of Swan & Blanch v. Bull, decided some three years ago by this Court. This case, by some accident, has never been reported, and has been unknown to the bench and bar, so that it cannot be claimed with propriety that he was misled by it; in fact, on the former argument no allusion was made to it whatever. On examination of the record in that case, I find that the opinion of the Court, though apparently in the teeth of all the authorities, is sustained by the case made.
The plaintiff did not succeed in establishing a right prima facie to the property. The sale by which they claim title was only colorable, or in fact, it was shown by their own witnesses that it was fraudulent, and that they were bailees of the defendant in execution. Under these circumstances, it was not necessary to show a debt. The rule is, that if a sale is made which was intended to be good between the parties, it cannot be attacked until the officer shows that he is entitled to represent a creditor; but if the sale is merely colorable, and it appears from the testimony that it never was the intention of the parties to pass the title, that the plaintiff is but the agent or bailee of the defendant in attachment, then the writ would be a sufficient justification for the officer, as it is evident that an agent, by reason of a colorable or fraudulent sale, would be in no better condition than his principal.
The rule is thus laid down by Starkie, in his work on evidence: " If the assignment and delivery of possession were merely colorable, and the property still remained in the debtor, against whose goods the execution issued, the sheriff, it seems, would be entitled to a verdict without proof of the judgment, the plaintiff having no property in the goods." It was doubtless on this view of the law that this Court based its former opinion, and we are prepared to maintain its correctness. This rule brings us to the examination of the first assignment of error, viz., the refusal of the Court to permit the defendant to ask the witness, in whose possession the property was some six months before the seizure.
The plaintiff had established title by possession, but had not introduced any bill of sale or evidence tending to establish a sale. This evidence was the weakest that could be produced to establish title. Having, however, shown possession, we think it was competent under any rule of evidence, to cross-examine the witness for the purpose of establishing the nature and character of the plaintiff's possession; to draw from him, if possible, the fact whether such possession was a mere cover to hide the defendant's property, and also, for the purpose of testing the witness' means of knowledge and information on this subject. It is true, that in our former opinion, we thought that the question was improper, but our minds were not directed to the distinction between bona fide and colorable sales. Since that time our attention has been called to the case of Chenery v. Palmer , 5 Cal. 131, (which was not then reported, and which had escaped our recollection,) where this same point was decided. We are unable to see any difference between the two cases, and must follow the rule there laid down.
Judgment reversed, and cause remanded.