Banning v. Marleau

Citations

• 101 Cal. 238
• 35 P. 772
• 1894 Cal. LEXIS 1016

Syllabus

<p>Claim and Delivery—Pleading—Answer—Improper Judgment for Return.—In an action to recover personal property, or its value, where there is no prayer, claim, or demand of any kind in the answer for a return of the property or its value, a judgment for its return to the defendant, or its value in case a return cannot be had, is not permissible, and cannot stand.</p> <p>Id.—Findings—Certainty.—Where the findings are not sufficiently certain to show whether an action for claim and delivery was decided upon the theory that plaintiff was not the owner of the property in any sense, or upon the theory that a sale of the property to the plaintiff was void as against creditors for want of delivery and an immediate and continued change of possession, a new trial should be granted.</p> <p>Id.—Sale Void as to Creditors—Sufficiency of Findings.—If a sale to the plaintiff was not followed by such possession as would make it valid as against creditors of the plaintiff’s grantor, the court should find that the parties attaching the property were such creditors; and it is not sufficient merely to find that the property was seized under certain Writs of attachment.</p> <p>Id.—Sale of Stock on Ranch—Delivery and Change of Possession—. Ownership of Land.—Where the property in dispute consisted mostly of livestock on a ranch owned at one time by the plaintiff and her grantor jointly, but owned exclusively by plaintiff for some years prior to the attachment, under a written transfer thereof to the plaintiff, and it appears that the grantor of the plaintiff acted for plaintiff at various times as a general superintendent of the ranch, and at the time of the attachment had a cropping contract which included part of the land, and plaintiff had other stock on the ranch belonging to her alone, in determining whether there was a sufficient delivery and change of possession of the property attached, due importance should be given to the fact that plaintiff was the owner and in possession of the