French v. Reel

*150OPINION ON REHEARING.

Beck, J.

— I. In an opinion heretofore filed, we held that the judgment of the district court ought to be reversed. Upon the petition of plaintiff a rehearing was ordei-ed, and the cause was again argued both orally and in print, and has been again considered by the court. In addition to the averments of the pleadings found in our former ojfinion, it is proper to state here that plaintiff alleges that he is the absolute owner of the goods in controversy, and the defendants aver in their answer that they were transferred to defendant by Ilarter & Olaus without consideration, for the purpose, on their part and on the part of plaintiff, to defraud their creditors, among whom were Field, Leiter & Co., and that plaintiff was not a purchaser of the goods in good faith and for value, but held them in trust for the use and benefit of Harter & Olaus. It is not entirely clear that the abstract shows that all the evidence is presented therein, but, for our present purpose, it may be regarded as containing all the evidence submitted in the court below. Neither party claims that the abstract does not contain all the evidence.

II. The instruction to the jury set out in the first point of our former opinion holds that there was no evidence tending to prove that the goods seized by the sheriff were sold by Harter & Olaus to plaintiff. This position seems to be based upon the ground that the evidence shows that the stock from which the goods were taken on the attachment contained “some” goods which had been purchased by plaintiff from the proceeds of goods sold out of the stock alleged to have been purchased of Harter & Olaus. The instruction under consideration is supported by counsel for plaintiff upon the following grounds, as stated in the printed argument:

“Third,.- — -That when the jfiaintiff has intermixed the goods with others belonging to himself, the bulk cannot be levied upon, so long as those belonging to the different owners can be *151distinguished. That in such a ease the plaintiff in the writ, when sued, can defend only by showing a right to levy upon that portion of the goods fraudulently disposed of by his debtor, and if he took the stock, the burden is upon him to show in addition that the interrma^/ivrc was done with intent to defraud, and that before removal the plaintiff was called' upon to select his goods. That if he remove the goods without thus giving the plaintiff an opportunity to inspect them and to select his own, the burden of proof is upon him.

Cases are cited which seem to support this position. But it will be readily seen that counsel’s position is not applicable to the facts of this case, where a part only of the stock was seized, not the whole stock. In the case contemplated by counsel’s position, there is a presumption based upon a certainty that some goods were seized that had been added to the stock after the transfer. In this case no such presumption exists, for, in the levy of the writ, all goods seized may have belonged to the original stock. Nor does it appear that plaintiff at any time made claim that any part of the goods were purchased after he acquired the stock, or that the sheriff at the time of the levy had notice of plaintiff’s claim as to the goods acquired subsequently to the transfer to him. In this case it appears to us that, as the sheriff is not shown to have made the levy with such notice, his levy upon the goods belonging to the original stock ought not to be defeated by the consideration of the possibility that he levied upon goods acquired after the sale to plaintiff. The onus rested upon plaintiff to show that the levy covered goods added to the stock after his purchase, for the reason that the facts were peculiarly within his knowledge, and could not have been known to the sheriff. Bailing to introduce the evidence, the burden of which rested upon him, the presumption of law is against him, and to the effect that the goods levied upon belonged to his original stock. The question whether, if plaintiff should be found to be a fraudulent purchaser of the goods, he could hold other goods purchased with their pro*152ceeds exempt from seizure, or whether the goods so purchased could be seized by the creditors of the vendors, need not be decided in this case.

III. Upon the second point of our former opinion, it is only necessary to add that the judgment against ITarter & Olaus was introduced in evidence, wherein it is adjudged that the writ of attachment upon which the goods were seized was properly issued. The indebtedness of Harter & Claus is thus established, as well as the fact that a writ was issued. We entertain no doubt that the law will presume that it was regular in all respects. This presumption, with the evidence of its contents, set out in the first opinion, sufficiently establishes the issuing and contents of the writ. Resides, we think the court below must have found that the writ had issued, otherwise proof of its contents could not have been admitted. These considerations sufficiently answer other positions of plaintiff’s counsel.'

IY. We think the judgment of the district court should be reversed upon a ground not referred to in our first opinion. The instructions put the case to the jury as though defendants claimed that plaintiff held the goods as the agent of Harter & Claus. No such an issue is presented in the pleadings. The real issue involved the question whether plaintiff was a good faith purchaser for value. It is not fairly and clearly presented in the instructions. But, as the court held that there was no evidence showing that the goods in controversy were sold by Harter & Claus to plaintiff, possibly it was thought unnecessary to present the issue mentioned to the jury.

We adhere to the conclusion announced in our first opinion, and order the judgment of the district court to be

Reversed.