Howland v. Fuller

By the Court Atwater, J. This was an action of replev-in, for a span of horses and whiffietree, claimed by Howland, Plaintiff below, as his property. The Defendant admits the taking, and justifies as sheriff under an execution in favor of Hans Christophersen against Charles M. Babcock, and alleging that the property belonged to said Babcock at the time of the levy. There was a jury trial, and verdict for the Defendant. The Plaintiff made a motion for a new trial, which was denied, and the Plaintiff appeals to this Court. [56] It appeals from the evidence that Howland claimed the property by virtue of the purchase of the same on the 8 th of December, 1860. The levy was made on or about the 2d day of January, 1861. A good deal of testimony was taken touching the sale from Babcock to. Howland, the Defendant claiming that the sale was fraudulent. Upon the trial of the cause, George Douglass, a witness on the part of the Defendant, was asked, “ what conversation you may have had with Charles M. Babcock, if any, in reference to the purchasing or trading for the hoi'ses in question, subsequent to the 8th day of December last ?” This question was objected to by the Plaintiff on the ground that it referred to a time subsequent to the transfer. The objection was overruled, and the testimony admitted, to which Plaintiff excepted. The witness answered that Babcock offered to trade him the horses for cattle, in May last. The object of the testimony was stated by Defendant, but no other is apparent than to show that the Plaintiff was not the owner of the property. The only tendency of the answer to the question was to show such fact. In Burt vs. McKinstry & Seeley, 4 Mmn., 204, and in Derby & Day vs. Gallup, 5 Minn., 119, we held that declarations made by a party who has conveyed his title or interest in property, made subsequent to such conveyance, and disconnected with it, cannot be received to invalidate the title of the grantee, or those claiming under him. We think this evidence falls within the rule there laid down, and should have been excluded. It is impossible for the Court to say that the evidence did not have some weight with the jury. That this evidence did. have weight is rendered more probable from the charge of the Judge, who directed the jury that they “were to take into consideration all that took place at the time of the sale, the possession, use, and disposal of the horses since the sale, the declarations of the Plaintiff and Babcock, all that was said and done as admitted in evidence.” Under such instructions, the jury could not well have laid out of view this evidence, and the reasonable presumption is, that it must have had its effect in determining their verdict. [57] A question was also put to another witness for Defendant, with reference to statements Babcock had made in regard to the consideration received for the horses, and objected to on the same ground as the preceding question. This evidence was also admitted, and though, perhaps, not as prejudicial to-the Plaintiff as the preceding, jet we think it was improperly admitted, as tending to invalidate the Plaintiff’s title by declarations of the grantor, made subsequent to the sale and disconnected with It. . The Plaintiff requested the Judge to charge the jury, “that the constitution and laws of this State exempt one pair or span of hoi’ses from levy and sale on execution ; and that if in this case, under the instructions given them, and the evidence at the trial, they should find the property in the horses to have been in Charles M. Babcock, at the time of the levy, yet, if they were his only horses and team, then they were by law exempt from seizure and sale on execution, and the de-fence would fail on that ground.” The Judge refused so to charge, and the Plaintiff' alleges this as ground of error. There was no error in the refusal oí the Judge to charge as requested. The Plaintiff is not in a position to contest Bab-cock’s right to hold the property on the ground that the same is exempt from levy and sale. No such issue is raised by the pleadings. The Plaintiff’s case must stand or fall on the strength of his own title. He must prove his own title as alleged in his complaint, and cannot sustain himself by proving title in another party, since his only claim of right to possession is by virtue of ownership of the property. Had he replied to Defendant’s plea, by alleging property in Babcock, and exemption, the reply would have been a departure from the complaint, and clearly lad. Much less will he be allowed to raise an issue upon the proof, directly contrary to that which he has tendered by his complaint, and which has not been, ■ and could not properly be raised by the pleadings. In Tullis vs. Orthwein, 5 Minn., 377, we held that the officer holding an execution has the right to levy upon property exempt from execution, and consequently to take the same into his possession. The exemption given by statute is a personal right and privilege given to the debtor, which may be [58] waived by him as well as any other; and if claimed by him, must be asserted and maintained in legal form, and cannot be claimed for him by another ; and much less can any such right be contested in the manner here claimed by the Plaintiff. And for substantially the same, among other, reasons, there was no error in the further refusal of the Judge to charge the sixth request of the Plaintiff The counsel for the Plaintiff also claims that the Judge erred in instructing the jury “that fraud in the Plaintiff’s purchase was sufficiently pleaded in the Defendant’s answer.” The allegation in that behalf in the answer is, that “ the claim of property and ownership by the Plaintiff herein to said goods and chattels, is through and by a pretended and fraudulent sale from the said Charles M. Babcock to the Plaintiff.” "Whether or not such pleading, under proper objection, would be sufficient to raise the issue of fraud in the sale, we do not deem it necessary now to inquire, as for two reasons the Plaintiff is not in a position here to object to the charge complained of. In the first place, the case shows, no exception to such charge. But even had there been exception, it would not in this case have been well taken. The answer alleges in express terms that the property belonged to Charles M. Babcock, the judgment debtor against whom the Defendant, as shen'ff, held executions. This was coupled with the further allegation, above quoted, as to the fraudulent sale to the Plaintiff To this auswer there was a reply denying, among other things, “ that the Plaintiff’s claim of property and ownership of the said goods and chattels is through or by any pretended or fraudulent sale thereof from Charles M. Babcock, or any one, to the Plaintiff, and avers that the said goods and chattels, at the time of the said levy, and also at the time of the commencement of this action, were the property of the Plaintiff,” &c. Here is a distinct issue made between the parties as to the ownership of the property; and the fraudulent character of the transfer, and the Plaintiff cannot, after joining in this issue, object that the answer is insufficient in form. In substance the charge of fraud in Plaintiff’s ownership, or pretended ownership, is distinctly made, and the Plaintiff cannot claim that he was surprised that such ques [59] tion was litigated in the suit. Much less can he claim, after evidence has been introduced on both sides touching the fraudulent character of the sale, without objections, (so far as the case shows) on that ground, that the Court should instruct the jury, that fraud was not sufficiently pleaded. In the New York Central Insurance Company vs. the National Protection Insurance Company, 14 N. Y., 85, it was held, that “ an objection to a defence on the ground of defective pleading cannot prevail on appeal, where it was not distinctly made at the trial.” And in White vs. Spencer, 14 N. Y., 247, it was also held, that “ where issue of fact is taken on a defence defectively stated, evidence to prove such de-fence should not be excluded on the ground of such defect.” This we think a sound rule, supported by law and sound reason, and applicable to the case at bar. On account of the admission, however, of the improper evidence above referred to, a new trial must be granted.