Heying v. Roane

McCOY, J. .Plaintiff brought this action in conversion to recover of defendant the value of one certain horse claimed to be owned by her. There was verdict and judgment for defend [93] ant,-and the overruling of a motion1 for a new trial, and plaintiff appeals, assigning errors of law and insufficiency of-the evidence.’ ■From the record it appears that levy .was made upon said horse, together with some cattle, under an execution and judgment against the husband of appellant, and to which execution and judgment -she was not a party, and that said horse -was sold to defendant to satisfy said execution at an alleged sheriff’s -sale. The defense interposed by respondent was that' the said horse, at the time of said levy and sale, was the property of Jos. H. Heying, the husband of plaintiff, and that respondent purchased said 'horse from the sheriff on execution sale, wherein said Jos. II. Heying was execution defendant and debtor, and that plaintiff ought not to be admitted to say that she is the owner of said property for the reason that she interposed no claim thereto until the beginning of this action; that she at all times kneyr of the seizure and was well aware of the sale of said property under said execution, and at no time asserted her ownership thereto, and that defendant had no knowledge as- to her claim of ownership, until the beginning of this action. [1] On the trial plaintiff testified that, she was the owner of said horse and always had been such owner since it was foaled. Plaintiff also called as a witness her husband, Joseph H. Heying, who testified that plaintiff, his wife, was the owner of sa-id horse and had been since it was foaled. On cross ■examination, her husband, over the objections of plaintiff, was permitted to' testify that on two different occasions he had mortgaged said horse .as his own. This ruling of the court is now-assigned as error. W.e hold that the ruling was correct. It was probably" somewhat unwise for plaintiff to call her husband as a witness. While his statements and admissions are not evidence, and are not binding, against her, yet, when she called him as a witness and he testified that she was the owner, the opposite party had the right on cross-examination, for the ■ purposes of discrediting and impeaching bis testimony to show that he had done acts inconsistent with his testimony. [2] Appellant contends that the evidence is insufficient to justify the verdict, in that the evidence clearly shows that she was the owner of said horse, and that there was no evidence that she was not such owner, and that there is no evidence that she [94] estopped 'herself by word, act or deed, from asserting her claim thereto. We are of the view that appellant is- right in this contention. There is no testimony whatever in this case tending in any manner to show that she was not the owner of said horse. The fact that her husband oar several occasions gave chattel mortgages' upon this horse is not binding upon her, and is no evidence at all that she was not the owner. While the giving of these mortgages was evidence tending to 'discredit and impeach the husband’s testimony, the giving of such mortgages did not in any manner tend to impeach her testimony. There is nothing whatever tending to show that she had any connection with or knowledge of the giving of the mortgages. A married woman in this state has the right to own and possess personal property separate and apart from her husband, and she is not bound by the admissions or acts of the husband in relation thereto', with which she has no connection. Aldons v. Alverson; 17 S. D. 190, 95 N. W. 917; 1 R. C. L. 515. Jones Ev. 260-263. [3, 4] There is no testimony in this case tending to show that she made no claim to' said horse until the beginning of this action, or that she stood by and asserted no claim to said property when it was being sold at sheriff’s sale, or that defendant had no knowledge of her claim until the beginning of this action while the testimony does conclusively show to the contrary. The testimony shows that prior to the execution sale appellant herein as plaintiff commenced another action against the sheriff -as defendant, and by claim and delivery process, in the hands of the coroner, took said' property from, the sheriff, and placed the said horse under said process in the barn of respondent to. keep until the expiration of the time during which the same might be rebonded by the defendant in the claim, and delivery proceedings, and after the expiration of the three days permitted by law for such rebonding by a defendant the coroner went to respondent’s barn to deliver said horse to appellant, but ascertained that the horse was gone; that the deputy sheriff who made the levy under the execution had taken the horse out of respondent’s barn and made the sheriff’s sale thereof to respondent under the execution against appellant’s husband, and that the horse had disappeared. In the first place, the deputy sheriff who. held the execution had no lawful right under the circumstances to thus sell [95] the horse at said execution sale. The coroner as an officer oí the court had lawful possession of -the horse for the purposes of the claim and delivery process, and this deputy sheriff was an unlawful wrongdoer in taking, said horse and making the execution sale thereof, which sale was wholly unauthorized and void, for the reason that the sheriff had then ceased to be in lawful possession so that he could make a valid -sale. One officer cannot thus take property from another officer without some process authorizing him so to do. This reason, and none other, would entitle appellant to a recovery for the value of the horse. The sale being void defendant could acquire no right thereunder, as against appellant who was not a party thereto. When property is taken in claim and delivery proceedings from a sheriff it is also taken from all his deputies who are no more, than his agents acting under him. When a coroner by a lawful process takes property held under execution from the sheriff, ¿t is also taken from any and all his deputies, who -thereafter have no right to retake such property except by order of the court or some new lawful process. The respondent as the owner of the barn was the caretaker and keeper of said horse for the coroner, and the sheriff, nor any of his deputies, had any right to then interfere with the possession thereof. Again, appellant testified- that she told deputy sheriff Splawn that the horse -belonged to her at the time the levy was made. Splawn did not deny this but said he could not remember what she said, — -that she -said something about the black horse, but he could not remember what it was. He seemed to- remember what he said and what every one else -said, but forgot what plaintiff said to him. It is an astonishing -case of forgetfulness. The attorney for the execution creditor was also on the ground at the time of the levy under the execution, and testified that when SplawU delivered appellant notice of levy, he told 'her that he had come after the black 'horse, and she said nothing except that they had been harrassed in this proceedings and that if he took the horse he would bring it back again as he did the cattle. This clearly indicates that appellant claimed -the black horse, and was not voluntarily giving it up to be sold on execution. There is nothing in the testimony that tends to dispute appellant’s testimony that she claimed the horse as her property prior to the execution sale. Splawn forgot what she said. Molitor, the attorney, cor [96] roborated the plaintiff. The fact - that she brought suit against the sheriff, by claim and delivery proceedings, conclusively shows that she made such claim prior to the sale, and was doing all in her power 'by lawful means to secure possession of the horse. There is no1 evidence that she was present-at the sale. It appears that a previous levy also had been made upon some cattle, and that the husband had claimed the cattle as exempt, but did not claim the horse as his exempt property but stated in his notice that the other property belonged to’the members of his family. The respondent acted as one of the appraisers’under the notice claiming exemption, and appraised the cattle and the black horse. We are of the view that appellant did not stand by and see the black horse sold at sheriff’s sale without asserting her claim thereto. The judgment and order appealed from are reversed and a new trial ordered and the cause remanded.