Bond v. Endicott

Conversion — Evidence — Sheriff — A ttachment — Fraudulent Conveyance. In an action against a sheriff for the conversion of a horse, there was evidence of its sale and delivery to the plaintiff by an intestate, who owned it. The defendant, who justified under an attachment of the horse in an action by the intestate’s administratrix against his housekeeper for its conversion, after evidence tending to show that the horse was never delivered, and remained in the intestate’s possession till his death, offered evidence that the housekeeper thereafter wrongfully took possession of the horse, claiming to be the owner, but had no title beyond that of an intermeddler; and that the sale to the plaintiff was in fraud of the intestate’s creditors. Held, that the evidence offered was rightly excluded.

Tort against the sheriff of Norfolk for the conversion of a horse. At the trial in the Superior Court, before Dunbar, J., the defendant denied that the plaintiff was the owner of the horse, and justified under a writ of Caroline T. Norris, administratrix, against Anna L. 'Wiswell, by virtue of which the horse was attached as her property by a deputy of his. The plaintiff introduced evidence tending to show that he bought the horse of George W. Norris, and paid him for it on April 25, 1881, and received a bill of sale of the horse, which was then in a boarding stable; that the next day there was a delivery of the horse at the stable, and afterwards the horse was at times driven hy the plaintiff; and that at the time of the attachment the defendant’s deputy was notified that the horse was the property of the plaintiff, and that he was forbidden by the plaintiff’s wife to remove it. The defendant introduced evidence tending to show that the horse was in the possession and control, of George W. up to the time of his death, in August,. 1887; that there had never been any delivery of the horse to the plaintiff; and that if the plaintiff ever drove the horse, he drove it as the servant of George W., and at his direction. The defendant then offered to show that at the time of the death of George W. the horse was in the stable of the house which he then occupied; that after his death Wiswell, who was his housekeeper, remained in the house, and claimed ownership of the horse, but had no title or claim to the horse except such as a person might acquire who takes possession and control, without authority, of goods after the death of the owner, and who continues such possession and control after notice of the appointment of a special administrator, and refuses to deliver them on demand, and is sued for the conversion of such goods; that Caroline T. was appointed special administratrix, and brought an action against Wiswell for the conversion of personal property, including the horse in question, in which action the horse was attached as Wiswell’s property and sold by the deputy; and that George W. when he made the sale, in 1881, was insolvent, apprehended attachments, and the sale was fraudulent as against creditors. The judge excluded the evidence thus offered. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.