
    Clarence A. Powell v. Lueva Yeazel, Administratrix of Abraham Yeazel, Deceased, et al.
    Filed October 15, 1895.
    No. 5469.
    1. Fraudulent Conveyances: Evidence op Good Faith: Instructions. In a contest between a vendee of chattels and creditors of one under whom he claims title the evidence tended to show a purchase for value and in good faith. Held, Error for the trial court in the instructions to characterize the sale as a “pretended sale.”
    2. Sales: Possession op Goods: Burden of Proof. The failure of a vendee of chattels to take possession thereof does not render the sale conclusively void as against creditors. It merely casts upon the vendee the burden of proving his good faith.
    3. -:-: Replevin: Attachment: Instructions. Therefore it is error to instruct the jury that such a vendee cannot recover in replevin from an officer attaching the goods as the property of the vendor if the vendee did not obtain possession before the levy of the writ, although he had no notice of the vendor’s fraudulent intent.
    Error from the district court of Adams county. Tried below before Chapman, J.
    
      Capps & Stevens, for plaintiff in error.
    
      Batty & JDungan, contra.
    
   Irvine, C.

This action was one in replevin by Powell against Yeazel, R. A. Boyd, Fred Einspahr, and George Crane. It was begun before a justice of the peace, and the property involved being appraised atan amount beyond the jurisdiction of the justice, the case was certified to the district court. After a verdict there for the plaintiff, a motion for a new trial having been sustained, amended pleadings were filed and the case again tried, resulting in a verdict and judgment for the defendants. The property in controversy consisted of forty-four hogs and about twenty head of cattle. The plaintiff claimed this stock by purchase from Anna D. Einspahr. Crane was the sheriff of Adams county and Boyd his deputy. They justified under a writ of attachment sued out by Yeazel against Herman D. Einspahr, the husband of Anna D. Einspahr, claiming to have levied upon the stock by virtue of that writ. The relation of Fred Einspahr to the case seems to be that it was claimed that he had been made custodian of the stock by the deputy sheriff at the time of the levy. The evidence tends to show that the property, prior to January, 1890, belonged to Herman D. Einspahr; that the latter part of January, Einspahr, by bill of sale, conveyed it to his wife. On the one side it is contended that this attempted conveyance was in fraud of Einspahr’s creditors. On the other side it is contended that Einspahr being indebted to the Exchange National Bank of Hastings in a large amount and also to Yeazel, its cashier, Yeazel, for the bank and himself, was endeavoring to obtain security for this indebtedness. There is evidence tending to show that certain security was already held, but the details as to this feature are not important, because the effort was being made to obtain a change in the form of the security and also additional security. The security desired was a mortgage on the real estate of Einspahr, including his homestead. In order to procure Mrs. Einspahr’s execution of this mortgage, and in consideration of her executing the same, a large amount of personal property, including the live stock in controversy, was transferred to her, and this, it was claimed, was done with the knowledge and consent of Yeazel. It was further contended that on the 6th day of February, 1890, the plaintiff agreed to purchase the livestock in controversy, dealing with Einspahr, and at that time not knowing of Mrs. Einspahr’s claim to the property. No sale was then consummated sufficient to answer the requirements of the statute of frauds; but on the following day, February 7, the sale was perfected by the plaintiff’s-drawing and delivering to Mrs. Einspahr his check for $940, the contract price. The check was delivered between 5 and 6 o’clock of the afternoon of February 7, and was subsequently paid to Mrs. Einspahr. On the 8th most of the hogs were taken into possession by the plaintiff and driven to Kenesaw. At 3 o’clock in the afternoon of the 7th, as shown by the return of the order of attachment-, the sheriff attempted to make a levy on the property. The-stock was then on the farm of Einspahr. There is evidence tending to show that the levy was regularly declared, but the stock was not moved off the place. Fred Einspahr, who lived on an adjoining farm, was requested by the deputy to take charge of the stock. He objected on the ground that his father was lying ill at his home, and he could not leave; but he was told, as his place was near the stock, he could “keep an eye on it,” and prevent others-from intermeddling. Herman Einspahr’s employes were-at the same time directed to feed the stock. On the 8th-the sheriff caused the hogs to be returned from Kenesaw to Einspahr’s place. On that day the plaintiff was driving the cáttle toward Kenesaw when he met the sheriff, who took them out of his possession. There is no evidence that the plaintiff had any actual knowledge of the levy until on the 8th, on his way to take the property into- his-possession, he was informed by Fred Einspahr that a levy had been made the previous day.

It will be observed that the salient questions in the case-are, first, the validity of the levy; second, the bona fides of the conveyance from Eiuspáhr to his wife, and third,, the bona fides of the sale by Mrs. Einspahr to the plaintiff. There was undoubtedly evidence sufficient to go to the-jury on the last two issues. It is contended by the plaintiff that the evidence was insufficient to establish a valid levy of an attachment. The record before us does not contain all the instruments which the bill of exceptions shows were offered in evidence, and as the judgment must on ■other grounds be reversed, we pass this question, simply remarking that this court has held that where an officer attaches property found in the possession of a stranger ■claiming title, in an action of replevin therefor by such •stranger the officer, in order to justify, must not only prove that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued {Williams v. Eikenbery, 25 Neb., 721; Paxton v. Moravek, 31 Neb., 305), and also that the test of the validity of •a levy upon personal property is whether or not the acts of the officer under his writ have been such as would make him liable as a trespasser, but for the protection afforded by the writ. (Grand Island Banking Co. v. Costello, 45 Neb., 119.)

At the request of the defendants the following instruction was given: “You are instructed as a matter of law that if from the evidence you will find that at the time of the pretended sale of the property in controversy by Herman Einspahr to Anna Einspahr and by her to this plaintiff, there was no immediate delivery to either of them followed by an actual and continued change of possession, and you find that said pretended sale was made with the intention on the part of Herman Einspahr and Anna Einspahr to defraud the creditors of Herman Einspahr, though said fraudulent intent was not known to or participated in by the plaintiff herein, the sale is void as to creditors and you must find for the defendant, unless you further find that plaintiff purchased said property and received possession then or prior to the levy of the attachment, or unless you find that Abraham Yeazel consented to and agreed that such sale and transfer should be made in consideration of Anna D. Einspahr’s executing the conveyances referred to in these instructions.” We think the learned district judge gave this instruction without sufficiently observing the language in which it is couched. It is, we think, in two respects erroneous to the prejudice of the plaintiff. It twice characterizes the sales from Einspahr to his wife and from her to the plaintiff as “pretended” sales. The word “ pretended,” used in such a connection, signifies something falsely assumed; something claimed contrary to the truth of the matter. The jury could not have understood it in any other sense. As we have said, there was evidence justifying the jury in finding that both sales were bona fide, and the court should not have used language importing an assumption that they were not so. In the next place the jury was told that if the sale was made with the intention on the part of either Einspahr or wife to defraud the creditors of Einspahr, the plaintiff could not recover even though he did not know and did not participate in such intent, unless he actually received possession of the property before the levy was made. We take it that the levy of an attachment upon personal property, like a levy upon real estate, attaches only to the debtor’s interest therein. A sale of personal property may be effectual even when over the value of $50, not only by the delivery of possession of the property, but by payment of the purchase money or some portion thereof, or by a memorandum in writing. The evidence raises some doubt as to the priority in time between plaintiff’s payment for the stock and the levy of the attachment. Assuming a levy to have been made, the fact that plaintiff did not receive possession until later would not necessarily defeat his right. The failure of the plaintiff to obtain possession would in a contest between him and creditors of the vendor affect only the burden of proof. (Fitzgerald v. Meyer, 25 Neb., 77.) A sale unaccompanied by a change of possession is not conclusively void as against creditors of the vendor. It only casts upon the vendee the burden of proving his good faith, and Powell might be a purchaser in good faith and entitled to the property as against creditors of Einspahr even if the transfer from Einspahr to his wife were voidable, and although he did not obtain possession of the property before the levy was made.

Reversed and remanded.  