Cilley v. Cushman

The opinion of the court was delivered by Williams, Ch. J. — In every case, which comes from the county court when the issue is tried by them, it should appear from the case, that they erred in deciding some questions of law and that this error either did produce, or tended to produce, the result to which they arrived. When the trial is by the jury, the questions are easily presented, either by objections to the admission or rejection of testimony on which the verdict was, or might have been, rendered, or by objections to the charge of the court on the testimony, which might have produced the result complained of. In trials by the court, objections may be raised on the admission or rejection of testimony. But if testimony is properly before the court and they render judgment thereon for the plaintiff or defendant, and the testimony would warrant such a judgment, error cannot be predicated of these proceedings, on the ground that if they had taken another view of the testimony they could not have arrived at the result without an erroneous decision of a question of law. In this case the plaintiff shewed an apparent title to the cow, for which the recovery was had, prior to any claim of the defendant. The defendant introduced testimony to show his claim, that is, the sale to Lamb and the transfer of that title to himself. The plaintiff also introduced testimony to show that the sale to Lamb was colorable and fraudulent, as against the creditors of Ebenezer Cilley, and the defendant introduced testimony to prove the contrary. There was nothiug erroneous in admitting any of this testimony, and, if properly admitted, the court, who tried the issue, might legitimately infer that the title, which the plaintiff had, was not divested by a sale on an execution fraudulently devised and contrived between Lamb and Ebenezer Cilley, and this, in my view, would entitle the plaintiff to an affirmance of the judgment without proceeding any further, as, upon testimo [497] ny properly before the court, it does not appear that they were led to their conclusion by the decision of any question of law, which might have been discussed in the course of the trial. A question of law, however, is supposed to' have been embraced in the case, and decided by the county court, which has been argued and on which we have no reluctance to express our opinion. The abstract question, whether a sheriffs sale on execution is likened to a sale in market overt, and will divest the property of the owner, and pass it to the purchaser, notwithstanding the execution was against a third person, we are not prepared to decide without further reflection and examination. But, to give the sale such an effect, there should be, not only the public sale but a delivery of possession to, and a taking possession by, the purchaser. It is true the purchaser may permit the property to remain with the former owner, without being liable to have his purchase defeated, by a subsequent attachment or execution of the creditors of the former owner, and, so far, a sheriff’s sale is considered as an exception to the principle of law, which makes sales of personal property void, when the former owner is permitted to remain in possession. But, in such cases, the sale is complete, and the consent of the purchaser and former owner is given to such possession, and the latter becomes the agent of the former. These principles cannot be extended to a case like the present, where the attempt is to divest the real owner of his property by a mere sale of it as the property of another. No evidence was given to show that the plaintiff was ever out of possession of the cow, that Lamb ever had the cow in his custody, that there was any agreement between Lamb and Ebenezer Cilley that the latter should keep the cow as his agent and for him, but the property remained where it always had been, and where the plaintiff had a right to consider it as in the hands of his agent, without any notice to him that any attempt had been made to take away either his title or possession; and we apprehend that if property, situated like this, had been sold in market overt, by Ebenezer Cilley, who in that case would have been a wrong doer, or if a thief, who had stolen a horse, should sell him in market overt, and such sale were attended with all the cir [498] cumstances necessary to give it validity, in the first instance, and the purchaser, without taking any actual custody or delivery of the property thus sold, should suffer or permit it to remain with the wrong doer or thief for so long a time, such a sale could not be set up to divest the owner of his property, but he would be justified in taking it from the possession of the wrong doer, and protected against any suit which the purchaser might bring after such a lapse of time, and he could maintain a suit therefor, when it was taken by the purchaser from the custody of his agent, where it it had remained so long without any attempt on the part of the purchaser to assert his right under the sale. In any view, which is presented in this case, we can see no error in the proceedings of the county court, and their judgment is affirmed.