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act for the relief of settlers on the public lands under the preemption laws.” (19 Statutes, p. 404.)
The facts in this case are substantially these: John T. Farley filed D. S. 649 at Los Angeles, California, for the S. of S. W. 14, and S. W. 4 of S. E. 14. Section 2, Township 19 S Range 2 W., on June 12, 1874, alleging settlement January 25th of the same year. He subsequently abandoned the S. W. % of S. W. 14 of said Section 2, and his filing for that tract was canceled by your office October 7, 1875.
On October 30th, 1877, Mr. Farley made application to change his filing for the other tracts to a homestead entry, under the provisions of the act of Congress approved March 3, 1877, which authorizes such change, and allows the settler credit on his homestead claim for the time he has occupied the land under the pre-emption laws. (19 Statutes, 404.) It appears tnat Mr. Farley made proof of his compliance with the requirements of the pre-emption laws, which was submitted with said application.
The local officers rejected said application because Mr. Farley did not appear in person with his witnesses at their office, and make proof of his compliance with the pre-emption laws, basing their action on the instructions contained in your circular of April 4th, 1877. On appeal you held that the applicant must appear in person at the local office, but that the testimony of his witnesses might be taken before a judge or clerk. I do not think your ruling is warranted by a fair construction of the law governing this case. There is nothing in the law authorizing the pre-emptor to change his filing to a homestead entry which requires his personal attend. ance at the local office; and in the absence of such a requirement, it is reasonable to suppose that Congress intended that the provisions of the homestead law relative to entry and final, proof should be followed in cases arising under this act. Section 2294 of the Revised Statutes authorizes the applicant for the benefit of the homestead law to make the affidavit required by Section 2290 of the Revised Statutes, before the clerk of the court of the county in which he resides, in cases where he is "prevented by reason of distance, bodily infirmity, or other good cause, from personal attendance at the district landoffice." The act approved March 3d, 1877, entitled “An act to amend Section 2291 of the Revised Statutes of the United States in relation to proof required in homestead entries,” (19 Statutes, 403] authorizes the settler to make his final homestead proof before the Judge, or in his absence, the Clerk of
Revise he residedily inhe dist
any Court of Record, of the County and State, or District and Territory, in which the land is situated.
It will be seen that personal attendance is not absoutely required in making a homestead entry, and is wholly dispensed with in making the final proof thereon, and as the law authorizing transmutation does not require it, I can see no good reason why it should be exacted in cases where good cause is shown for non-attendance. The claimant must show a boua fide residence on the land and full compliance with the law when he makes his final proof, and I am of opinion that this interloctury proof should be dispensed with, and in lieu thereof, the homestead affidavit should be so amended as to set forth the fact of a previous pre-emption filing, the time of actual residence thereunder, and the intention of the party to claim the benefit of such time on his homestead entry, under the act of March 3, 1877.
You will allow Mr. Farley to enter the land in question, after amending his homestead affidavit in the manner above stated. Your decision is reversed, and the papers transmitted with your letter of December 22d, 1877, are herewith returned.
C. SCHURZ, Secretary. -Copp's Land Owner for April.
Nevada Supreme Court Decision.
Duncan S. Thomas, Appellant, vs. J. D. Sullivan, Max Ober
felder and M. Harrison, Respondents.
ATTACHMENT. FRAUDULENT TRANSFER. —
(Opinion by LEONARD, J.) In July 1874, and prior thereto, William Jones and W. L. Kimerly were copartners in coal and wood business in Eureka County. They had formerly owned two wood ranches, but on the 28th day of July, 1874, they had but one, which was known as the "Gunn ranch.” They owned teams which were roquired in carrying on their business. At the time of the sale of the property to plaintiff, hereinafter mentioned, Jones and Kimerly, as co-partners, were indebted to different parties, among whom were defendants Oberfelder and Har. rison, whose claim was $2,238.94, for goods sold and delivered to Jones & Kimerly. On the 3d of August, 1874, Oberfelder and Harrison brought suit against Jones & Kimerly to recover the amount of their claim, and attached the property described in the complaint herein. Defendant Sullivan, as Sheriff of Eureka County, served the writ by taking the property into his pos. session. Oberfelder and Harrison obtained judgment for the full amount of their claim, and this action was brought to recover of defendants the value of the property attached and taken by them, stated to be $1,600. Defendants, in their answer, admitted taking the property described, but justified the same by alleging that it was at the time of the attachment, the property of Jones & Kimerly; that plaintiff's claim thereto was fraudulent; that if any transfer of said property was ever made, such transfer was for the purpose of hindering, delaying and defrauding the creditors of Jones & Kimerly, and particularly Oberfelder & Harrison, defendants herein, and that such transfer was without consideration and void. A jury trial was had and plaintiff obtained judgment against defendants for the alleged value of the property attached, $1,600. Defendants moved for a new trial on the grounds that the jury gave excessive damages; that the verdict was against law; that errors in law occurred at the trial, and that the evidence did not justify the verdict. The motion was granted by the court upon the last ground stated, and this appeal is taken from the order granding a new trial.
The record does not disclose wherein the evidence was regarded as insufficient by the court, nor has counsel for respondent, in his brief, directed our attention to any particular wherein it was insufficient. The statement is incom. plete, and the result is that the most important questions touching the merits of the case cannot be decided.
Counsel for appellant urges us to disregard the statement on motion for a new trial so far as it relates to the assignment that the evidence does not justify the verdict, on the ground that there are no sufficient specifications of particulars wherein the evidence is alleged to be insufficient. As to some of them, we think the criticism of counsel is just; but the last is full and explicit. It is that no change of possession of property on the ranch was shown."
At the trial plaintiff claimed and introduced evidence tending to prove, that on the 28th day of July, 1874, Kimerly, on behalf of Jones & Kimerly, sold and delivered to him the personal property described in the complaint, and also the said “Gunn ranch;" that a portion of said personal property was at the time upon the ranch, and consisted of wood, coal and coal sacks; that the consideration of the sale was two promissory notes, signed by him and made payable on demand to Kimerly alone; plaintiff and Jones testified to the fact that Kimerly was auotherized by Jones to sell the property; also that subsequent to the sale and before the attachment Jones notified the acts of Kimerley; but upon the quostions of previous authority and subsequcnt notification defendants proved the testimony of Jones given under oath before Judge McKenny, subsequent to the attachment, which tended to show that the salo by Kimerly was unauthorized by Jones, and that the latter did not notify the acts of the former before the attachment.
Plaintiff testified that Kimerley delivered to him a bill of sale of the personal property on the ranch, and of the ranch itself, but the record contains no transcript of the same.
Upon the question of the delivery of the property on the ranch, plaintiff testified that on the 28th day of July, 1874, Kimerley delivered to him the ranch and the wood, coal and coal sacks thereon ; that he stopped on the ranch two or three days; that he asked Gunn, who had been burning coal for Jones & Kimerlog, for seventeen and one-half cents a bushel, to continue burning for him upon the same terms, and that Gunn agreed to burn for hiin as he had been doing for Jones & Kimerley; that he then went to Sulpher, where he had left the team; stayed there all night; went to the ranch, loaded with coal and went to Eureka, where the Sheriff attached the wagon and coal therein, on the 3d day of Jugust; that the Sheriff attached the cattle, seven head, on the 5th day of August; the balance of the coal, a portion of the coal sacks and all the wood were attached on the ranch. Plaintiff testified that he was to pay the notes by hauling coal, and was to have time to do so. It does not appear that he gave any security for their payment. He had due him $600; owned horse, saddle and bridle, and two coal ranches, the value of which is not stated. He did not assume any debts of Jones & Kimerly; did not know whether Jones & Kimerly owed Oberfelder & Harrison anything or not; knew that the latter had furnished the former with goods, but was not certain that there was any indebtedness by reason thereof; made no inquiries as to what Jones & Kimerly owed; thought it was none of his business. Jones testified that the property Kimerley sold to plaintiff was all the property that the firm had left; that the reason why the sale was made was because Kimerly said Oberfelder & Harrison would close down on them; that they wanted their men to get their pay; that he and Kimerly had a quarrel and concluded to close out. He also stated that neither he nor Kimerley was on the ranch after the sale; but it does not appear that either of the partners was on the ranch at any time before the iale, or that any one romained there except Gunn, who still remained in the employ of plaintiff as he nad previously done for Jones & Kimerly.
Aside from a conveyance and delivery of the ranch by Kimerley, the only evidence before us of a continued change of possession of the personal property attached thereon, is this: Plaintiff stopped on the ranch two or three days. But so did Gunn, as he had formerly done; and there is no proof that plaintiff exercised any acts of ownership over the ranch or personal property thereon during the two or three days he was there; and during the whole time before the attachment, the only act performed by him that indicated a claim of own. ership or possession, so far as the record shows, was loading up a certain amount of coal after getting the team from Sulphur, and taking it to Eureka. We do not think this proof was sufficient as against creditors of Jones & Kimerley, to satisfy the Statute of Frauds. But aside from the fact that a bill of sale, signed by Kimerley alone, purporting to convey the ranch and the personal property thereon, was admitted in evidence against defendant's objection, the testimony above stated is all the proof given to establish a delivery and continued change of possession of such property. The bill of sale is not before us, and consequently we cannot know that it was such an instrument in writing as the statute requires as a conveyance of an interest in lands. We do not know whether the whole title of Jones & Kimerley, or Kimerley's alone, or of neither, was conveyed thereby.
Without previous authority or subsequent notification before the attachmont, Kimerloy could not sell or convey Jones' half interest in the ranch, although it be true that the bill of sale was sufficient in form and substance on ito face to convey the whole title; and upon the question of such authority and ratification, we have seen there was great con. flict of testimony. But whatever the real facts may be as to the conveyanco of the ranch, as before intimated, the case, as presented on this appeal, is the same as though there had been no attempted sale of the real property. How. ever, the order granting a new trial must be sustained for another reason. At the trial defendants requested the court to instruct the jury as follows:
"In making up your minds on the validity of the sale claimed by plaintiff, you should take into consideration all the circumstances surronnding tho same; the situation of the parties; the solvency or insolvency oi Jones and Kimerly; whether Thomas was acquainted with their circumstances or believ. ed or had reason to believe them in debt; the character of the notes given; that they were payable only to ove of a firm; whether the trade was within the legitimate business of the partnership business, and the action of the par. ties; and if, from all you believe, the sale was not in good faith, and for a valuable consideration, you will find a verdict for defendant." The refusal of the Court to give this instruction is assigned as error. The intent of parties to a sale can never be ascertained except by a consideration of all facta attending it. If their intent was fraudulent the sale is void, although a full price was paid by the vendee. (Bump on Fraud Conveyances, 231.) No witness can look into the minds of the parties and thus be able to swear positively that they intended to defraud the creditors of the vendor; and hence, fraud can generally be shown only by facts and circumstances which tepd directly or indirectly to establish it. No one act or declaration may establish it, but the whole, when considered in the light of surrounding circumstances, may show it to the satisfaction of court and jury. “These acts and declarations, and all concomitant circumstances, must be established, and then the motion may be deduced from them in accordance with those principles which are shown by ex. perience and observation to rule human conduct. The proof in each case will consequently depend upon its own circumstances. It usually consists of many items of evidence, which, standing detached and alone, would be immaterial, but which, in connection with others, tend to illustrate and shed light upon the character of the transaction, and show the position in which the parties stand and their motives, conduct and relation to each other." (Bump 360.) There was no fact or circumstance mentioned in that instruction which should not have been taken into consideration" by the jury. There was no fact or circumstance legitimately developed at the trial that should not have been taken into consideration by them in deciding upon the question of the intent of both parties to the sale. This instruction would have directed the jury, among other things, to take into consideration the fact that the notes given by plain. tiff were payable to Kimerley alone. This, at first blush, may seem to tako from the jury the consideration of the question whether the notes were or were not so payable. But that fact was conceded by plaintiff. In fact ho so testified. So upon this point, there was no question of fact to go to the jury.
The instruction offered was correct and iinportant, and the refusal to give it was error that may have been prejudicial to defendants. For this error alone, the court did not err in granting defendants' motion for a new trial; for although the order was made on the ground that the evidence was insufficient to justify the verdict, it is well settled that “a wrong reason will not vitiate or affect a correct judgment or result." Scott vs. Haines, 4 Nev., 428.) The order of the District Court granting a new trial is affirmed.