Bosbyshell v. Cline

The two above-entitled actions were tried together. The first one is in the nature of claim and delivery to recover certain personal property. In the second, plaintiff therein, alleging that certain real estate had been fraudulently conveyed by its debtor, William Bosbyshell, to Maggie J. Bosbyshell, sought to have the transfer thereof declared fraudulent and void.

Judgment was entered for the plaintiff in the first case and for defendants in the second, from which defendants in the one and plaintiff in the other have appealed.

As we gather from the meager statements and excerpts of evidence from the typewritten transcript, as printed in the briefs, the facts material to a decision of the cases are: That Maggie J. Bosbyshell is the mother off William Bosbyshell, who, prior to February 2, 1915, had been engaged in the business of building contractor, as a result of which he was at the time indebted to the Hammond Lumber Company in the sum of $6,323.67, for which on said date he made and delivered his promissory note in evidence thereof; that at the same time he was indebted to his mother in the sum of some $19,000, as evidenced by his promissory notes theretofore delivered to her. At the time, he and his mother were joint owners of a small ranch, upon which neither resided, but through employees they conducted a dairy consisting of some fifteen or twenty head of cows, and possessed other personal property used in connection therewith, all of which they owned jointly. On March 1, 1915, William Bosbyshell, in payment of the indebtedness due to his mother, conveyed to her his one-half interest in

Appellant suggests no reason and makes no argument in support of a reversal of the judgment rendered in the case of Hammond Lumber Co. v. Maggie J. Bosbyshell and William Bosbyshell.

As to the other case, that of Maggie J. Bosbyshell v. Cline, Sheriff, etc., et al., it conclusively appears that at the time of the alleged transfer made on March 1, 1915, by William to his mother, he was justly indebted to her in the sum of upward of $19,000. [1] Indeed, appellants do not question the good faith of the parties in this transaction; but, invoking the provisions of section 3440 of the Civil Code, claim that the purported transfer was not accompanied by an immediate delivery of the property, nor followed by an actual and continued change of possession of the things so transferred, and hence the alleged transfer as to the Hammond Lumber Company must be deemed to be void. Without quoting the testimony bearing upon the question, we may concede that, as claimed by appellants, the evidence is insufficient to support the finding to the effect that the transfer of title to the property made on March 1, 1915, was accompanied by an immediate delivery

Title to the ranch was, by deed duly recorded, conveyed to the mother on March 1, 1915, of which fact the Hammond Lumber Company must be deemed to have had notice; and while it is true that, commencing in June, 1915, and for a period of nearly four years prior to the levy of the attachment, she, at a salary of $150 per month, employed her son to manage the ranch and, as her agent, to care for the dairy stock and personal property which she had, subsequent to March, 1915, purchased ■ with her own funds and placed upon the ranch in his charge, such facts would not justify the conclusion that, as to debts contracted by

[2] It was alleged and proved that on November 1, 1916, William Bosbyshell bought a herd of cows for which his mother paid a part of the purchase price in cash and he, instead of his mother so doing, executed a mortgage thereon for the balance and immediately thereafter executed a bill of sale of the property to his mother, subject to the mortgage, which mortgage she thereafter paid. Appellants insist the judgment should be reversed because the court made no finding upon the issue as to the giving of'this mortgage by William. We see no reason for so doing. The act of William in executing the mortgage at most raised a presumption that merely by virtue of his executing the mortgage he was owner of l^e herd of cows so purchased. The testimony touching the transaction and the fact that his mother paid the entire purchase price is ample to overcome such presumption. [3] The fact that William, long after the making of the levy, to wit, on July 10, 1919, when asking for exemption from military duty, made an affidavit that his mother was dependent upon him, which affidavit," in view of the fact that she was more than seventy years of age and feeble, he might very well have made, is, if competent evidence, of no weight whatsoever touching the issue which was tried, namely, whether he or his mother owned the property. In Dubois v. Spinks, 114 Cal. 289 , [ 46 Pac. 95 ], it is said: “What constitutes an immediate delivery, or an actual and continued change of possession, in the sense of section 3440 of the Civil Code, is a question of fact to be determined on the evidence; and where, as in " this case, the evidence tends to prove such delivery and change of possession, the finding of the court will not be disturbed.” And in Feeley v. Boyd, 143 Cal. 282 , [ 65 L. R. A. 943 , 76 Pac. 1029 ], the court says that such question is governed by no definite rule, but depends upon the facts and circumstances of the particular case, and where there is conflicting evidence and a variety of circum

The judgment in each case is affirmed.

Conrey, P. J., and James, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 21, 1921.

All the Justices concurred.