Burke v. Sharp

Hili,, C. J., (after stating the facts.) 1. The first point made by appellants is that the interplea was not verified, and this was made a ground in the motion for a new trial, wherein the lack of verification was pointed out to the trial court. Section 391, Kirby’s Digest, requires that any person, before the sale of attached property or before the payment of the proceeds thereof to the plaintiff, may present his complaint, verified, to the court, disputing the validity of the attachment, or stating a claim to the property or an interest therein, and his claim shall be investigated. It is argued that the statute is rhandatory, and that the failure to verify is fatal. But this section of the statute is taken from the Civil Code, and must be read in connection with another section of the Code which says: “No objection shall be taken after judgment to any pleading for want of, or defect in, the verification.” Section 6152, Kirby’s Digest. Counsel say that section 6152 was passed many years before the intervener’s statute (section 391), and was therefore not applicable to it; but in this counsel are in error, for both are taken from the Civil Code. Section 391, Kirby’s Digest, is section 257 of the Code, and section 6152, Kirby’s Digest, is section 159 of the Code. II. The next assignment is that the court erred in modifying appellant’s second instruction. This modification was by striking out the following words: “A continued possession of personal property by the vendor as the ostensible owner and exercising acts of control and ownership over the same under .such sale is fraudulent and void against creditors of the vendor.” It is contended that the laws of Missouri should govern as to the possession of this property, and that under the laws of Missouri the eliminated clause would be correct. It is unnecessary to go into the laws of that State upon the subject, because the laws of Missouri do not govern under the facts of this case. This was a question between Burke & Joseph, and D. P. Cullen and U. B. McCurdy and the Cullen-McCurdy Construction Company. The property was situated in White County, Arkansas, and the suit was there brought for money advanced by the plaintiffs to the defendants for railroad construction in this State. The property had been brought irom Texas and Louisiana into Arkansas, and there controlled ostensibly by the Cullen-McCurdy Construction Companj'- under a lease made to it while in Arkansas ; and whether it was really the property of this corporation. or its corporators, or of Sharp, was the issue. The laws of this State, and of no other State, should determine the effect of the possession by the debtors of the property in this State at the suit of théir creditors brought here. Garner v. Wright, 52 Ark. 385. This part of the instruction would be in conflict with Valley Distilling Co. v. Atkins, 50 Ark. 289, Stix v. Chaytor, 55 Ark. 116, and Shaul v. Harrington, 54 Ark. 305. In Missouri there is a statute on the change of possession of personal property. As to its construction, see Lesem v. Herriford, 44 Mo. 323; State v. Goetz, 131 Mo. 675. For the reasons indicated 'above, the Missouri statute could not apply to the effect of possession of personal property in Arkansas held here under a lease made here upon it. The parties were residents of Missouri, and the bill of sale was executed there. The bill of sale would be governed by the laws of Missouri, so far as given effect in that State. But the possession of the property was taken in Texas and Louisiana, and the question of the continued possession was of the property in Arkansas, and therefore the statute of Missouri could not reach to it. III. The next objection is to instructions .two and ten. The first point made is that the instructions omit a consideration of the subsequent conduct of the parties, it being said that they leave out the entire question of the lease, the later incorporation and all acts after the execution of the bill of sale and taking possession. It was not improper to leave out these considerations, because these instructions were stating the law which would make the written contract valid; and other instructions, given at the request of the plaintiffs, presented the law as contended for by them as to the effect of the continued possession and the various circumstances indicative that the transactions were fraudulent. As has often been said, all the law of the case can not be presented in one instruction; and these instructions deal with one phase of the case, and correctly deal with it, and are not erroneous because they do not incorporate the theories under which plaintiffs attempted to defeat the intervener’s action upon the bill of sale. It is also objected that instruction ten leaves out the question whether the lease was properly of record. The Missouri statute upon this subject is quoted; but, as shown in the discussion of the previous question, this Missouri statute could have no bearing upon the lease made in Arkansas upon property situated here. . IV. Instruction six is criticised for declaring as a matter of law what was a reasonable time for taking possession under the bill of sale; but it does not so declare. It states the evidence which was adduced on behalf of the appellee, and told the jury that if they found that the facts there assumed were the truth of the case, the possession was taken within a reasonable time, as contemplated by law. This bill of sale, as indicated, would be governed by the Missouri law. The Supreme Court of Missouri, in State v. Goetz, 131 Mo. 675, stated: “What is ‘reasonable time’ is a question of fact when the evidence is conflicting as to the character and condition of the property, and the length ■of time necessary for its delivery, and it is only where the facts are undisputed, and the evidence substantially all one way, that it becomes a question of law.” The court very properly in this case assumed that if the facts testified to by the intervener were true, then as a matter of law the possession was taken within a reasonable time; and left it to the jury to determine the truth of the matter testified to in relation to it. V. The same objection is made to instruction twelve as the first objection that was made to instructions two and ten; and it is argued that “it left out any intent of fraud that might have been formed after the bill of sale was executed.” This instruction stated correctly that a bill of sale, regular on its face, is prima facie evidence of a contract of sale in good faith, and instructed the jury that, unless they found from the evidence that there was a contemplated fraud on the part of the grantor at the time of the execution of the bill of sale in question, and which was known to the grantee, their verdict must be for the intervener. This goes to the intervener’s title, and correctly states the law. If the plaintiffs relied upon fraud after that time, as they did, they should present instructions, as they did, asking that the law governing such subsequent conduct be given to the jury for their consideration, which was done. Each went to different phases of the case, and it was proper to be given in separate instructions. There is no inconsistency between them, and they must all stand together and be read as a harmonious whole. VI. It is said that the third instruction is misleading, in that the instruction assumes as a matter of fact that Sharp was the owner of the property. The first part of the instruction, taken alone, is subject to that criticism ; but, when read as a whole,, it is found that it is left to the jury to determine that question. The first part is qualified by the latter part, wherein it is said that “if at the time he so leased, rented or hired said property to. the said Cullen-McCurdy Construction Company, he was the owner thereof,” etc. Therefore it is not thought to have been susceptible of misleading the jury in any way whatsoever. VIL Criticisms are made of instructions 4, 5, 7 and 11.. The argument against them is practically the same argument that has heretofore been discussed in dealing with the other instructions. The cases of Valley Distilling Co. v. Atkins, 50 Ark. 289, Stix v. Chaytor, 55 Ark. 116, and Shaul v. Harrington, 54 Ark. 305, state the principle governing the retention of personal property by the vendor ; and it is not found that any of the instructions in the case are in conflict therewith. VIII. Finally, it is insisted that the verdict is contrary to> the evidence, in that the evidence shows that the title, if it shows any at all, is in the C. Ii. Sharp Contracting Company, a Kansas corporation, and not in C. H. Sharp, the intervener. The evidence shows that Sharp conducted his contracting business in the name of the C. FI. Sharp Contracting Company, of Kansas, of which he was the owner of all the shares except four, which were held in trust for him. The bill of sale upon which the interplea is predicated is made to C. H. Sharp, individually. It is true that the money advanced for the purchase of the property was paid by a check of the contracting company. But it is not open to these plaintiffs to question the relations between Sharp and the corporation which furnished money to him to buy this property. The bill of sale shows that he took title to it in his own name. Whether the Sharp Contracting Company could hold him as trustee for it would be a question between him and that corporation. Section 5999, Kirby’s Digest, requires that every action must be prosecuted in the name of the real party in interest, with certain exceptions therein mentioned. — one of which is that the trustee of an express trust, a person with whom or in whose name a contract -is made for the benefit of another, may bring an action without joining with him the person for whose benefit it is prosecuted. Section 6002, Kirby’s Digest. And, even if it were open to these plaintiffs to question the title, yet, under these provisions of the statute, Sharp would be ■entitled to bring this action, if it be conceded that the property in equity belonged to the Sharp Contracting Company. IX. Appellants argued fully the facts of the case, seeking to obtain a reversal on the ground that there is not evidence legally sufficient to sustain the verdict. It would serve no useful purpose to review the facts of the case. Suffice it to say that the court is of the opinion that the evidence is legally sufficient to ■sustain the verdict. X. Appellants have filed a motion, since the submission of the .cause, to set aside the submission and permit the transcript to be amended so as to show that proper objection was made to the instructions given and modifications made; and to the refusal •of the court to give instructions as requested, and that the exceptions were properly noted to the rulings of the court upon these objections. As the court is satisfied, after an examination of the case, that no errors were committed, it would be useless to, give time for the record to be corrected. The court has disposed of the case upon the merits, without determining whether, if the ■court 'had found error, and proper objections and exceptions were not shown to have been made, the appellants were entitled at this late hour to have the cause continued in order for the record to be amended. The judgment is affirmed.