Ransier v. Vanorsdol

Dav, J. I. The bill of sale was executed in consideration of one thousand dollars. The court found as a fact that J. C. Ransier was indebted to Shadbolt & Boyd more than one thousand dollars, which indebtedness is not fully paid; that the bill of sale was intended as a mortgage to secure said indebtedness, and that there has been paid on the debt secured by the bill of sale the sum of one thousand and seventy dol [133] lars. The appellant concedes that if one thousand and seventy dollars has been paid on the debt secured by the bill of sale, the security should be discharged. But it is claimed that this finding of fact by the court is altogether without support from the testimony. We think this position of appellant is correct. It is true C. E. Ransier testifies: “Before the sheriff took the property on that bill I had paid Shadbolt & Boyd every dollar I owed them. That bill of sale was given in the nominal sum of one thousand dollars. I had paid Shadbolt & Boyd one thousand and seventy dollars and fifty cents before the sheriff took the property.” Here is evidence sufficient to support a finding that C. E. Ransier had paid all he owed, but the bill of sale was given, as the court finds, to secure an indebtedness of JVC. Ransier. C. E. Ransier, being recalled, testified as follows: “The whole amount that I ordered of Shadbolt & Boyd, on the strength of that bill, was five hundred and some odd dollars. I have paid them. I paid them, in all, one thousand and seventy dollars.” It thus ■appears very clearly, and without any conflict of testimony, that of the one thousand and seventy dollars which C. E. Ransier testifies he paid, a little over five'hundred dollars was paid upon a new indebtedness which he created after the bill of sale was executed, leaving but a little over five hundred dollars to apply on the indebtedness of J. C. Ransier, secured by the bill of sale. The finding of the court that one thousand and seventy dollars has been paid on the debt secured by the bill of sale is not supported by the evidence, if the bill of sale was executed to secure an indebtedness of J. C. Ransier. The finding that the bill of sale was executed to secure a debt of J. C. Ransier is sufficiently supported by the evidence. II. It is urged that the finding of .the court that the bill of sale was changed after it was executed and delivered by the addition of the name of J. C. Ransier, without the consent of C. E. Ransier, is not supported by the evidence. Upon this point the evidence was conflicting. There is not such want [134] of evidence in support of the court’s finding that we would be authorized to set the finding aside. 1. javimrartnn: instrument. III. It is urged that the court erred in the finding of law that the change in the bill of sale, by J. C. Ransier’s signing the same as co-maker, was such as to discharge plaintiff from all liability thereon. In the deter- mination of this question it becomes necessary to consider the attitude of the case, and the office which the bill of sale now performs. The defendants have taken possession of the property described in the bill of sale, and have disposed of it in satisfaction of the debt secured. They do not need, and they do not ask, any affirmative relief based upon the bill of sale. All that they need, and all that they ask, is to be protected in the rights which they have acquired. As to them the contract has been executed. In 1 Greenleaf on Evidence, § 568, referring to the effect of alterations in instruments, it is said: “But here, also, a further distinction is to be observed between deeds of conveyance and covenants; and, also, between covenants or agreements executed, and those which are still executory.. For if the grantee of land alter or destroy his title deed, yet his title to the land is not gone. It passed to him by the deed. The deed has performed its office as an instrument of conveyance, and its continued existence is not necessary to the continuance of title in the grantee, but the estate remains in him until it has passed to another by some mode of conveyance recognized by the law. The same principle applies to contracts executed in regard to acts done under them.” See Davidson v. Cooper, 11 M. & W. 778; Kendall v. Kendall, 12 Allen, 92; Cheeseman v. Whittemore, 23 Pick., 231. In this case the execution and delivery of the bill of sale created a title and right to possession of the property in the defendants. This possession having been assumed, it may, under the doctrine of the authorities above referred to, be maintained under the bill of sale, notwithstanding the alteration complained of. [135] IY. It is urged that tbe court erred in the following finding of law: “That it is immaterial whether J. C. Ransier owned any interest in the property in question at the time said bill of sale was executed. Plaintiff had an unrecorded bill of sale to him from said J. C. Ransier at the time of which Shadbolt & Boyd had notice. They derive their title from plaintiff, and cannot now be heard to dispute it.” Under the views we have expressed of the case it is unnecessary to determine as to the correctness of the law contained in this finding. Having executed a bill of sale to C. E. Ransier, J. C. Ransier would be estopped from disputing C. E. Ransier’s ownership of the property. We have seen that the title, conveyed by the bill of sale from C. E. Ransier, may be maintained. J. C. Ransier being estopped from claiming the property, if the defendants succeed in holding C. E. Ransier’s interest in and title to the property, they need nothing more. Reversed.