Hazard v. Cole

Bowers, C. J., delivered the opinion of the court, Kelly, J., concurring specially. This action was commenced in the third judicial district court, on a bill filed, in which is alleged several distinct grounds of relief, concluding with a general prayer, that the court, by its judgment and decree, may give such relief “as the nature of the circumstances of this case may require.” Upon the trial the court below dismissed the bill, and gave judgment for costs in favor of defendants. Motion for a new trial was made. Upon the hearing of the motion in the court below, upon suggestion of the judge, counsel for plaintiff and defendants in open court consenting, the cause was adjourned to this court, under and in accordance with the terms and provisions of section 826 of the civil practice act, and the question is, shall this court advise and direct that the judgment and decision of the court below rendered on the second day of July, A. d. 1868, be vacated and set aside, and a new trial ordered ? The case was tried before Judge Cummins, and the facts found by the court were: 1. That on the eleventh day of September, 1866, the defendant, the Lincoln Silver Mining Company, by its assist-tant treasurer, C. F.Balcom, at Silver City, thereunto duly authorized, drew its bill or draft for ten thousand dollars on its treasurer in Providence, R. I., payable at the latter place to said defendant Cole, in United States gold coin, in consideration of advancements before that time made by said Cole to said company, at Silver City, in United States currency, which amounted to that sum at the rate of about seventy-two cents in the dollar; and Cole afterwards, and before the nineteenth day of October, 1866, made further advancements to said company, in legal-tender notes, amounting to the sum of one thousand three hundred and eight dollars and ninety-five cents, at the rate aforesaid, for which said company agreed to pay Cole the said sum of one thousand — 278 — three hundred and eight dollars and ninety-five cents, in gold coin; that said Cole paused said bill or draft to be presented to the treasurer of said company, in Providence aforesaid, for payment; the same was not paid, and was then and there protested for non-payment; that said Cole afterwards, and on the said nineteenth.day of October, 1866, brought two actions against said company in the district court for said county, one on said draft and the other on said account, and caused the property of said company, consisting of a quartz mill and certain personal property, to be attached in said suits, and on the thirtieth day of October, 1866, recovered judgments in his said actions, respectively for the sums of twelve thousand six hundred and thirty-eight dollars and eighty-seven cents, including interest and costs and twenty-five per cent, damages on said draft or bill of exchange, and for one thousand three hundred and seventy-two dollars and twenty-five cents debt and costs, in both of which judgments was included a clause that they be paid and collected in United States gold coin. 2. That on the third day of September, 1866, said company was indebted to said plaintiff on account in the sum of seventeen thousand dollars for advancements before that time made by him to said company on like terms and rates as those by said Cole, and then agreed to make further advancements to said company to the amount of about three thousand and three hundred dollars, for which he gave his due bill to said company, and then and there received from said company, through said Balcom, a promissory note of said company, dated third of September, 1866, for thirty thousand dollars, payable in legal-tender notes at New York, on demand, to said Hazard, with interest at the rate of two per cent, per month; that said Hazard after-wards paid to said company the amount of said due bill, making the total of his advancements to said company twenty thousand and three hundred dollars, which was the consideration for said note, and the difference was added in order to make up the difference between currency and gold coin at that time in New York city, it being understood between the parties, as in the case of said Cole, that such — 279 — advancements were made at gold coin rates; that after-wards, and before the nineteenth of October, 1866, said plaintiff made further advancements to .said company, amounting to about one thousand five hundred and eight dollars and ninety-four cents, on account; that said Hazard on the ninteenth of October, 1866, commenced his action in said court against said company for said indebtedness; caused attachments to be levied on the same and other property of said company subsequent to those of said Cole, and on the thirtieth day of October, 1866, recovered judgment thereon against said company for the sum of thirty-one thousand six hundred and twenty dollars, to be paid and collected in currency, and the further sum of one thousand five hundred and eight dollars and ninety-four cents, to be paid and collected in United States gold coin, and for a further sum of two hundred and ninety-one dollars costs. 8. That by agreement of the judgment creditors executions were stayed on said judgments for sixty days, by entry in the record, for the purpose of giving time to said company to pay up and resume their operations. 4. That said company failing to pay up and resume their operations, said Cole, on receiving notice of the intention of said company not to pay up and relieve their property and prosecute their business, on the ninth of March, 1867, caused executions to be issued on his said judgments to the sheriff of said county, who thereupon, on the fourteenth of March, 1867, sold the personal property of said company, so attached, as aforesaid, for a sum sufficient to satisfy the smaller of his said judgments and costs, and the further sum of two thousand one hundred and forty-two dollars and forty-seven cents, which was applied to the other and larger judgment, and on the sixth day of April, 1867, sold the mill premises and appurtenances of said company for the sum of eleven thousand four hundred and thirty-five dollars and fifty-four cents, in full satisfaction of the balance due on said larger judgment. That said Cole at said sales became the purchaser of said mill premises and most of said personal property. That said mill premises consisted of a small amount of land in the vicinity of Silver City, with the — 280 — mill, office, boarding-house, and other tenements pertaining to the establishment, all situate on the same lot; that said personal property (except a portion of the firewood designed for milling uses, which was one or two miles up the gulch from the mill, the balance, whiclf was the larger portion thereof, being stacked on the lot near the office and mill) was some of it in the mill, some of it in the office, some of it in the boarding-house, and a lot of lumber on said lot. The weather being inclement and wintry the sale was held in the mill, and the sheriff, and also said Cole, announced to the persons present the property was open and free to inspection for any one desiring to bid, and all persons attending the sale had an opportunity to inspect the property if they desired. 5. That said Cole, on sale of said personal property, received possession of the personal property so bid in by him, hired a keeper to hold and take care of the same, and kept the possession of the same until he sold it to defendant Wilson in, December, 1867; and the sheriff, on the sale of the mill property on the sixth day of April, 1867, filed in the recorder’s office of said county a certificate of such sale, and delivered to said Cole a duplicate of the same. 6. That at the time of said sales, and for some time before and after, there was a great depression in the mining business and property in said county, as well as in other businesses, and a great scarcity of money, in consequence of which there was little or no demand for the kinds of property sold. No one , of the several mills in the county were running, and no mines were yielding returns. That said Cole was the highest and best bidder for the property purchased by him at said sales, and no bidder offered any higher or better price therefor; that the executions on his said judgments were in their terms in accordance with the judgments, and they were read to the bystanders on the commencement of said sales without further announcement of the terms of sale. 7. That the attorney of said Cole who acted in procuring his said judgments, had no special or other powers from said Cole than such as pertain to the ordinary functions — 281 — of an attorney at law, in respect to tbe business of bis client. 8. That there was no contract between tbe plantiff and tbe defendant Cole, to tbe effect that plaintiff should forebear suing said company in consideration that Cole should give him tbe first information of tbe dishonor of bis said draft for ten thousand dollars, and that Cole should give him such first information in consideration of such forbearance, and institute simultaneous action and obtain simultaneous attachments with said Hazard,' but at most only a promise by said Cole at the request of said Hazard, that he would inform him of the fact of such dishonor in case that it occurred; which promise said Cole fulfilled by giving such information to Hazard on the night of its receipt. 9. That on the seventh of December, 1867, Cole obtained a sheriff’s deed of said mill premises under said sale, and on the same day by deed conveyed the same to defendant "Wilson, and at the same time sold and delivered to. said 'Wilson the personal property so purchased by him, and said Wilson then and there entered into the possession of said property under said deed and sale, and still holds the same. 10. That at the time of his purchase from said Cole, defendant Wilson had no knowledge of any claim, demand, or alleged equity of said Hazard, except that he was a judgment creditor of said company, subsequent to said Cole. As conclusions of law applicable to the facts aforesaid, the court found: 1. That plaintiff has established no equities that would entitle him to the relief sought, or to any relief which this court could give. 2. That the judgments of said Cole were valid subsisting judgments, and that the sales thereunder were valid; at the most, they were merely irregular, so far as the clause requiring the same to be paid and collected in gold coin, and which irregularity might have been corrected by application to the court in which said judgments were rendered, or in the appellate court. 3. That no application or showing having been made by any party in interest to the court in which said judgments — 282 — were rendered, to correct said irregularities, or to set aside the sales made thereunder or by virtue thereof, that said defendant, John M. Wilson, acquired a good and valid title to said personal property and real estate purchased by him of said Cole on the seventh day of December, 1867. 4. That there was no fraud in the judgments or sales thereunder, and this court does not find' grounds in the alleged inadequacy of price to disturb the sales. 5. It results that the defendants are entitled to judgment against the plaintiff for their costs, and it is so ordered. As appears from the statement, the motion for a new trial is based upon two general grounds: 1. Insufficiency of the evidence to justify the decision of the court, and that such, decision is against the law. 2. Errors in law occurring at the trial and excepted to by the plaintiff. No exception was taken to the first, second, third, fourth, sixth, seventh, eighth, or ninth finding of fact. The only exception to findings of fact which is shown in the statement, is to the fifth and tenth, but in an assignment of errors and exceptions, signed by plaintiff’s attorneys and filed as a paper in the case, after having been served upon defendant’s attorneys (which, however, has no certificate of the judge who tried the case attached to it showing its correctness), the tenth finding is excepted to as well as several exceptions for failure to find, etc. Upon the argument, counsel on each side took an extensive range, pressing the consideration of their respective views touching each particular fact as found by the court; and while we do not desire that it shall be considered as a precedent in future cases, we propose to consider the case upon this basis, as argued, and it is sufficient to say of the several findings numbered respectively first, second, third,! fourth, sixth, seventh, eighth, and ninth, that no testimony’ is reported in the statement from which this court is able* to determine either as to their propriety or impropriety, and we consider it well settled that in such case this court is bound to presume that the testimony was in every respect sufficient to support the findings. The testimony in reference to the fifth finding appears in the statement, and it is — 283 — insisted by counsel for plaintiff that it is insufficient to support tbe same. Springer, tbe sheriff, testified that the sale was made by his deputy, himself not being present. Ezra Mills testified: “I was deputy sheriff in March, 1867. I made the sale of the personalty March 14, 1867. On the same day of sale I made a bill of sale to Cole, and put him in possession.” Thomas Cole testified: “At the sale I received a bill of sale of the personalty bought by me, and the same time received possession of it. I moved over there, boarded and slept there, and kept personal supervision and possession of the property until I went below, when I hired and paid a man to take and hold possession of it for me until I came back. I kept possession of it from the time bought until I sold the property to ’Wilson.” In addition to the above it also appears that Cole after-wards sold a large portion of the personalty and delivered it to Wilson.' The foregoing is extracted from a large mass of testimony directed to this point, and appears to fully support the finding of the court, unless the questions and considerations of law'urged by plaintiff’s counsel shall have the effect to render such proof of facts inapplicable to this case. The testimony shows that the personalty was sold on the premises of the Lincoln mill company, against whom the execution ran, and that after the sale and purchase thereof by Cole, the property was left upon the same premises, and it is insisted that this being true, there was no such actual and continuous change of possession as is required by the fifteenth section of the “act concerning fraudulent conveyances,” which provides that “every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the thing sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor or the creditors of the person making such assignment, or subsequent purchaser in good faith.” It is urged that while there can be no question as to the — 284 — delivery at the time of the sale, inasmuch as the goods were allowed to remain in the same place and upon the premises of the judgment debtor, the “actual and continued change of possession” necessary and requisite could not be, and is therefore conclusive evidence of fraud, and that the goods, in view of the provisions of law, could only be permitted to remain in the same place such reasonable time as was necessary to remove them.~j There are several reasons why this theory is unfoundecfin this case, and it is not necessarily true in any conceivable case. 1. The statute does not in any sense refer to the place. The place may be a freehold of the purchaser and in his possession, or he may have purchased the premises in or upon which the goods were sold at the same time, or part of the same purchase, and entered into the possession thereof. Will it be contended that in either of the cases put, the goods must be “removed within a reasonable time ”? Certainly not; and yet, if a removal be necessary in the one case, it is in the other, for if the place is in any sense involved in the meaning of the statute, there must be a removal in every case. If a removal constitute any part of the “actual and continued change of possession” referred to in the statute, it goes to every conceivable transaction, and no sale will be held free from objection without it. An outgoing tenant sells his household furniture and chattels to the tenant coming in, who enters, uses, occupies, etc. The sale is void under the statute as against the creditors of him who sold the goods, because “ they were not removed within a reasonable time.” This is correct reasoning if the place has any bearing upon the matter. j We are, however, fully satisfied that the 'real question to be determined in'the consideration of this and every similar case is, Who has the possession and control of the goods, he who purchased under the sale, or he who was the owner before such sale? If it be found that the goods are under the supervision and dominion of the party claiming to have made the sale, it (the sale) is absolutely void as to creditors, etc., though the goods have been moved a thousand miles. If, on the contrary, it is found that the goods — 285 — are under the supervision, dominion, and control of tbe purchaser, tbe sale is good, though no removal follow such sale.j Webster says of the word “possession,” in defining it when used in law, “the having, holding, or detention of property in one’s power or command; actual seisin or occupancy; ownership, whether rightful or wrongful.” It can matter not whether Cole’s possession was held upon the premises of the Lincoln mill property, not even had it appeal'd that he maintained such possession by actual force. That he did have possession and the control of the property does not admit of a doubt. The officer making the sale swears he gave him possession. He himself swears he received possession from the officer, and immediately went upon the premises and retained under his own control and that of his agent the goods until he subsequently sold them, and the fact that he did subsequently sell and deliver the goods to another mathematically demonstrates its truth. Again, in order to sustain the sale in view of the meaning and intent of the fifteenth section before referred to, it is neither important nor necessary that the goods should be or remain in the possession of the purchaser. It is only essential that they be not allowed to revert to or remain in possession of the vendor. In this case, the sale took place in Owyhee county. The goods wrere sold in and upon the premises of the Lincoln mill company, at or near Silver City. The sale took place on the fourteenth of March, 1867. In the complaint in this action, which v?as filed February 10, 1868, it is alleged, “ That for more than a year last past, said defendant, the Lincoln Silver Mining Company, has refused payment of its indebtedness, and has had no agent, employee, or representative in this territory,” etc. This allegation the plaintiff would not be permitted for any purpose to dispute, and when considered as true, renders it absolutely impossible that the goods sold at said sale could have i’everted to or remained in possession of the vendor, to wit, said company. The tenth finding is excepted to, and the testimony reported at some length, but we are unable to discover a sin — 286 — gle reason why it is not supported in every particular by the evidence. Hazard and Wilson appear to bave been the only witnesses examined upon tbe questions involved in tliis exception, and did it appear that the testimony of these two stood one against the other, in their statements conflicting, the rule clearly is, that we should hold the finding supported. But upon examining the testimony, we find that Wilson swears positively that he had no notice except such as the record gave him, and Hazard says nothing about notice. Objection and exception is also made to the findings of the court in this, that the court omitted to find a fraud upon Hazard, for that Cole admitted to Hazard and others, that the time for redemption did not expire until the month of December, 1867. We are unable to see how such finding was material or in what manner it could have affected the ultimate conclusion. The testimony upon this point is meager and unsatisfactory. But if it be conceded that a finding upon the fact complained of would have been as claimed by counsel, there is no tenable ground for designating it a fraud. The time' at which the right to redeem expired was ascertainable in the office of the recorder of the county, and was equally within the reach and knowledge of both Cole and Hazard, and neither party had a right, or was in any manner justifiable in relying upon the recollection of the other. Exception is also made, that the court omitted to find that the defendant Wilson entered upon the premises under a lease from the agent of the Lincoln silver mining company with the knowledge of Cole, and that he held the same under such lease until December, 1867, Cole consenting. There is no force in this objection. It can make no difference by what terms Wilson held the premises before purchasing, though it had been by brute force, the only ma-j terial question being, did he obtain the title by his pur-l chase ? This having been answered in the affirmative by I the court, such finding as is asked could not affect the case. The statement shows only a single exception to have been — 287 — made to any ruling of the court during the progress of the trial, and that is as follows: “Plaintiff also assigns as error the refusal of the court to admit in evidence the amended judgment of plaintiff, to which ruling plaintiff excepted on trial.” There are, however, six assignments of error contained in the paper hereinbefore referred to, to a part of which reference is made in the statement in the following words: “The court erred in the third, fourth, fifth, and sixth exceptions to conclusions of law and assignments of error on file and served.” The first of these objections has reference to the facts as being insufficient" to support the conclusion, and has already been considered. The second, third, fourth, and fifth are directed particularly to the character of Cole’s judgments, as being void, irregular, insufficient to support the sheriff’s deed and to carry the title, and fraudulent, and may well be considered together in what we shall have to say as to said judgments. It seems to be conclusively settled, that a judgment can only be impeached in a court of equity for fraud in its concoction. It is also said, on the highest English authority, approved and adopted by Kent and Story, that there is no case in which equity has ever undertaken to question a judgment for irregularity. (2 Story Eq., sec. 1575, note 1; 8 Johns. Ch. 275; 4 Id. 85; 6 Id. 234; 20 Johns. 677; 7 Cal. 443; 34 Id. 301.) The complaint in this case charges no fraud in obtaining the judgments sought to be set aside, except the general allegation that they were obtained in fraud of the plaintiff’s rights. It is urged that the judgments were void, in that they were rendered for gold coin. They were not void. The most that can be said of the judgments on this ground, in any event, is, that they were irregular, and might have been modified on motion in the same court, or on appear by the appellate court. (Betts v. Butler, ante, 185; 2 Nev. 100; 27 Cal. 100, 496.) While a sale under a void judgment passes no title, if the judgment is merely voidable for irregularity the sale is good. (8 Cal. 568.) A purchaser at sheriff’s sale under execution issued upon a judgment which is voidable only, acquires a good title. (1 Cow. 622.) — 288 — Ia Hastings v. Burning Moscow, 2 Nev. 100, it is expressly belcl that a sale on a judgment and execution for gold coin was valid, and passes tbe title; but tbe court says that upon motion or on appeal and modification of tbe judgment, where tbe judgment creditor purchased tbe property sold, and still bolds it, tbe court will set aside tbe sale. Tbe reason for this rule is given by tbe court in Reynolds v. Harris, 14 Cal. 667, thus: Tbe judgment creditor still has bis judgment, and it works no injury or loss to him, but in case of a stranger purchasing at tbe sale, or from tbe purchaser, after he obtains a sheriff’s deed, be can not be remitted by tbe court to bis former position. Tbe court says: “If upon reason and authority tbe questions decided in this case were left in such extreme doubt, that we might well incline to tbe one side or tbe other, considerations of public policy would impel us'to solve tbe doubt in such manner as to promote the repose of titles held under judicial sales, rather than by technical niceties to overthrow them.” In view of tbe reasoning of tbe supreme court of California it may be said that if either defendants or creditors have tbe right to come into a court of equity and impeach and set aside judgments at law and sales thereunder, on tbe ground that tbe judgments and tbe process thereunder contained a clause for their collection in gold coin, the direct effect would be to unsettle titles to a large portion of property within this territory, and to ruin hundreds who have reposed confidence in judicial sales, and paid valuable considerations for titles thereunder. Far better would it be upon reason, and we think it to be well settled upon authority on tbe doctrine of waiver and acquiescence, to bold that what has been done and long acquiesced in, until rights of third parties have grown up thereunder, should be presumed to have been rightly done. All mere irregularities may be waived; besides, in all these cases of judgments with specific clauses for gold, gold dust, or gold bars, when they have been satisfied by sale, and titles thereunder have accrued to third parties, the judgment upon the doctrine of waiver should in each case be considered the law of the case, and an attempt to impeach — 289 — such judgments and sales is as void of merit as if the debtor liad paid sueb judgments without sales; for in effect it is then nothing more than a payment of the judgment. Having said this much upon the theory that the judgments in this case sought to be set aside are irregular, because of the gold-coin clause contained, it may be well questioned if such clause be an irregularity. In December, 1864, the legislature of this territory passed what is commonly known as the Specific Contract Act, which act was uniformly enforced until January, 1868, when its validity was questioned for the first time. And this court, as then constituted, held the said act void, as conflicting with the act of Congress, making the promise of the United States government a legal tender, etc., and while this court would not have been the first to disregard such decision, it is asserted that the supreme court of the United States, in a recent decision (which we have been unable to examine), have in substance and effect overruled it; but as this view of the case was not presented by counsel, said decision not having been issued at the time this case was argued, we are not satisfied to base our decision upon the point first made. Some objection is made by plaintiff that there were two sales, and that the sheriff’s return is defective, etc. It is sufficient to say of this objection, that a purchaser under execution does not depend for his title upon the return of the sheriff. (12 Cal. 133; 4 Wend. 506; 1 Cow. 623; 8 Cal. 186; 4 Id. 47; 4 Wheat. 506.) In this latter case, it was held that it mattered not what return the marshal made, or whether he made any return at all. It is insisted that inasmuch as the draft which was the foundation of the larger of Cole’s judgments against the Lincoln silver mining company was drawn by one agent or office of said company in this territory on another agent or office of the same company in Bhode Island, it was not in fact a bill of exchange and, as a consequence the addition of twenty-five per cent, to said judgment as damages under the act of this territory was fraudulent, and rendered the290 judgment void. We regard tbe better rule to be as laid down by Parsons (vol. 1, p. 62), tbat sucb a draft may be treated as either a bill or a promissory note. In addition, by express provision of the act of January 11, 1866, damages are allowed on “bills drawn or negotiated in this territory, on any person or company,” etc., which language, as we think, clearly imports that whatever the general rule may be, the legislature of this territory did not intend a restriction to bills drawn by one person or corporation, etc., here, on another person or corporation, etc., elsewhere. Nor do we, in any event, well see how such thing could be considered a fraud, such as to invalidate the judgment. If the question was raised, or in any manner became an issue on the trial, it must have been ruled upon in some way by the court, and so became a judicial determination of the matters involved, and if erroneous, should have been excepted to, and corrected in the appellate court. Much stress is laid by counsel in the argument, and some testimony reported in the statement, on what is termed Hazard’s rigktto redeem the property sold under Cole’s judgments, he being a subsequent judgment creditor, and upon the further fact, as alleged, that two certificates of sale were filed with the recorder. We are ill prepared to admit that this question is in any wise entitled to our consideration, for the reason that the complaint is in no sense a bill to redeem, nor does the testimony show any offer to redeem within any known rule of law. We may, however, remark that the filing of the certificate of sale by the officer making the sale in the manner prescribed by statute was intended to impart, and did impart, to Hazard and to all the world, constructive notice of the estate acquired by the purchaser under it— notice not only of the fact of sale, but of the legal consequences. (31 Cal. 812, 813.) The filing of the certificate imparts notice of certain facts, and the sequence of these facts is a question of law, and a mistake thereunder is at one’s peril. Hence any statement which may have been made by McQuade, Cole’s attorney of record, as to what Cole claimed, or what were his rights in the premises, can matter not. Hazard was bound, under — 291 — the rule just stated, as matter of law to know these things, and if he, as matter of fact, did not know, McQuade, Cole’s attorney was perhaps not just the best person from whom the required information should have been sought. There is nothing shown in the statement whereby it can be seen that the court erred in excluding the amended judgment offered in evidence by plaintiff. On motion for a new trial, or on appeal, every intendment is in favor of the judgment or ruling of a court of record. The party complaining must show error affirmatively. It does not appear from the statement what the judgment or the amendment was; nor in what court; nor against whom it was rendered; nor that it was in any wise material to any issue in this case; and as a consequence of this, it does not appear that any material right was affected by the ruling complained of. In such a case the exception must be disregarded as immaterial. No error being shown, the ruling excluding the proffered testimony is conclusively presumed to be correct. (10 Cal. 267.) Nor is it ground for anew trial that the findings were filed after the adjournment of the term. They were filed within ten days after the trial, which is all that is required by the statute. In conclusion, we do not hesitate to say that the facts found by the court are fully supported by the evidence, and are ample as a predicate to support the judgment. The omissions to find we have shown to be immaterial, as affecting no substantial right. We are unable to see any basis upon which it might be supposed that a new trial would result in any manner different from the former trial, and where such is the case a new trial will not be granted. (1 Cal. 213; 6 Id. 26; 1 Id. 285.) The motion for a new trial must be denied and the judgment of the court below affirmed, and it is so ordered. In passing upon this motion, we have considered it generally, and in so doing have passed upon several questions which it is insisted by counsel for defendants were not properly before the court. Consequently we consider it advisable to suggest that the proper practice to be adopted in the future on motion for new trial and on appeal is to — 292 — incorporate into the statement or transcript, as the case may be, every question of law or fact which the court will be called upon to consider. Motion for a new trial denied. Judgment affirmed.