First Nat. Bank of Aberdeen v. Peugh

Cook, J., delivered the opinion of the court. Appellee instituted an attachment suit in the circuit court of Monroe county against W. L. Perkins and Hal Perkins, who were at the time nonresidents of the state. The attachment writ was executed by levying on certain office equipment, which was located in an office formerly occupied by W. L. Perkins. At the time the levy was made the door of the office was locked, and the officer inventoried and valued the property levied on by viewing it through a window of the office building. There was a judgment by default in favor of appellee on both the attachment and debt issues, and, the appellant having interposed a claim "to the property attached, the proper issue was made up, [825] and a trial of this claimant’s issue was had before the judge without the intervention of a jury. At the conclusion of the evidence there ivas a judgment in favor of the plaintiff in attachment, and the claimant appeals. There is very little, if any, real conflict in the evidence. The president of the appellant bank testified that on the 5th of July, two months before the levy of the attachment writ, TV. L. Perkins applied to the bank for a loan of five hundred dollars; that one of the assistant cashiers of the bank let him have one hundred and fifty dollar's, and took from Perkins one note for one hundred and fifty dollars and one for three hundred and fifty dollars, secured by a deed of trust on his office furniture, but declined to then advance the money on the three hundred and fifty dollar note; that for several days thereafter Perkins sought to secure this sum of money from the witness Sykes, but, being familiar with Perkins’ financial circumstances, he declined to make the loan; that Perkins was to leave Aberdeen on July 9th, four days after the execution of the two notes and deed of trust; that, a short time before the hour fixed for his departure, Perkins came into the bank and again begged the witness to let him have the three hundred and fifty dollars balance on the proposed loan; that he informed Perkins he would not let him have this money as a loan on the security of the deed of trust which he liad executed, but that he would let him have this amount provided he (Perkins) would turn this office furniture over to the bank; that Perkins had the office building where this furniture was stored leased until November 1st, thereafter with the rent thereon paid to that date; that Perkins then agreed to transfer the property to the bank and deliver possession thereof, as well as the balance of the lease on the office building, and agreed to deliver to the bank the key to this building; that upon the transfer of this property to the bank he paid to Perkins the three hundred and fifty dollars‘balance originally applied for; that a few days thereafter the key to the office where this property was stored was delivered to the [826] bank, and liad, thereafter remained in the possession of the hank; that about six weeks before the levy of the attachment the bank took from this office a typewriter for use in the hank, and at the time of the levy had negotiated a sale of an adding machine. In response to a question by the court as to whethei* he claimed the property by virtue of the trust deed or by virtue of the transaction between the witness and Perkins afterwards, the witness replied: “I should say by virtue of what happened afterwards. I don’t know as I drew any fine distinction about that. I would say by virtue of both. I wasn’t willing for it to remain in the form of a deed of trust. I wanted him to deliver the property to us, so, if Ave found a purchaser, we could sell it, and not be bothered xvith going through the form of advertising it. He said that was all right with him, and he turned the property over to us, and afterwards delivered us the key.” The property transferred consisted of two iron safes and various other articles of office equipment, and there Avas evidence that the bank had no place to store this property, except in the office building Avhere it was located at- the time of the transfer. On behalf of appellee there Avas testimony that, after the levy of the attachment Avrit, some officer of the bank told appellee that the bank held a deed of trust on the property, and that one of the assistant cashiers of the bank told the officer who made the levy that the bank held a deed of trust on this property, and demanded an indemnifying bond. It is admitted that the deed of trust executed by Perkins to the bank on July 5, 1921, was void on account of an insufficient description of the property attempted to be conveyed thereby. Upon the facts in this record Ave think the claimant was entitled to recover possession of the property involved. The testimony that the property Avas transferred to the bank long before .the intervention of the attachment lien is direct and positive, and there is nothing Avhatever in this record to dispute this testimony of the bank’s officers who handled the transaction. The failure of the bank to [827] Remove the property from the building in which it was located is sufficiently accounted for by the fact that the property was bulky and the bank had no other place to store it, and, having acquired the balance of the term of the lease, the property could be left in this building without the accrual of rent thereon. Under the agreement to transfer the title and possession of the property in consideration of the payment of three hundred and fifty dollars, the symbolical delivery of the articles by delivery of the key to the building in which the property was stored, in connection with the transfer of the lease of such building and the surrender of the right of possession thereof, was a sufficient delivery of the property to complete the sale and transfer of the title thereof. Reversed, and judgment here for claimant. Reversed.