Williamson v. Monroe

This is an action upon the official bond of J. W. Monroe, sheriff of Yolo County, against said sheriff and his sureties, to recover damages for the alleged conversion by said sheriff of certain personal property, alleged to be of the value of three thousand dollars. The defendants in their answer denied that the plaintiff was the owner of the property alleged to have been converted, and denied that the same was of any greater value than $724.50. On the trial the defendants justified under an execution issued upon a judgment in favor of A. A. Merkley against George S. Holmes and J. Fonnesbeck, in virtue of which execution said sheriff had levied upon the property as the property of said Holmes and Fonnesbeck and had thereafter sold the same, after due notice, in the manner required by law. The court made its findings to the effect that the plaintiff was not the owner of the property aforesaid, that its value was only $724.50, and that the sale under said execution was lawfully and rightfully made. Thereupon judgment was given in favor of the defendants for their costs. From this judgment plaintiff appeals.

A part of the property, claimed to be of the value of about one thousand dollars, consisted of the farming utensils, implements of husbandry, and other property used by Fonnesbeck upon the farm aforesaid in'his farming operations, and was exempt from execution under subdivision 3 of section 690 of the Code of Civil.Procedure. Section 3440 provides as follows: ‘1 Every transfer of personal property ... is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his credi

We can see no escape from this conclusion. The language of the proviso is clear. In the absence of the restrictions placed upon sales of personal property by the opening clause of the section, a valid sale thereof could be made which would pass the title without delivery. (Civ. Code, sees. 1.140, 1141, 1721,1739.) A bill of sale was duly executed by Fonnesbeck to Williamson on November 14th, and the title passed to Williamson thereby, unless these restrictions applied to prevent it. As the proviso declares that these restrictions do not apply to property exempt from execution against the vendor, it necessarily follows that Williamson’s title was perfect to all the property of that class included in the sale, even if there was no immediate actual delivery or change of posséssion. The sheriff had no right to levy upon this property, even if Fonnesbeck had been openly in possession thereof, if it then belonged to Williamson.

At the time of the levy in 1911 and at the sale, Williamson made a claim to all the property in the manner provided in section 689 of the Code of Civil Procedure, but neither he nor Fonnesbeck ever made a specific claim that any of the property was exempt from execution against Fonnesbeck. Bespondents contend that the property was not exempt from .execution unless a claim to that effect was made and that, consequently, the proviso docs not apply in this case. The statute, however (Code Civ. Proc., sec. 690), declares in positive terms that such property is exempt from execution. The exemption is not declared to be conditional upon the assertion of a claim of exemption by the debtor. Its status as exempt property comes from its character and use, and not from any claim for exemption. It is true that the right of exemption may be waived and that, when the officer actually makes a levy upon such property, if the debtor does not claim his right

The decision in Barton v. Brown, 68 Cal. 11 , [ 8 Pac. 517 ], was made prior to the amendment adding the proviso to section 3440. It has no application to sales of exempt property made after that amendment. This was expressly held by this court in considering and denying the petition for rehearing in Meyer v. Perkins, 20 Cal. App. 661 , [ 130 Pac. 206 , 208], In that case the district court of appeal decided, in effect, that a claim of exemption was not essential to the operation of the proviso. By denying a rehearing with .the additional statement above mentioned this court, in effect, approved that decision.

Thé appellant further insists that the evidence, with respect to the property not exempt, was insufficient to prove that there was not an immediate delivery to Williamson, followed by an actual and continued change of possession. With respect to an immediate delivery this court has held that when there is an execution levy upon property and it is in charge of a keeper, a sale made by the debtor during such possession of the keeper is not a sale “made by a person having at the time the possession or control of the property,” within the meaning of section 3440, and is valid without immediate delivery. (Williams v. Borgwardt, 119 Cal. 80 , 82, [ 51 Pac. 15 ]; Curtner v. Lyndon, 128 Cal. 35 , [ 60 Pac. 462 ].)

There was a conflict in the evidence upon the question whether Whitmarsh or Fonnesbeck was in possession of the property from the time of the release of the first attachment in November, 1910, until the execution levy in February, 1911. There was also doubt whether the keeper, in charge at the time of the sale to Williamson, was in actual possession and control of the property at that time so as to bring the ease within the rule of the decisions above cited. Under these circumstances,

The judgment is reversed.

Sloss, J., and Lawlor, J., concurred.