(Court of Appeals of Colorado.

Jan. 14, 1895.) ASSIGNMENT OF FUND-CHECK.

1. An assignment by a creditor of part of a debt without the consent of the debtor is invalid.

2. Defendant drew three checks in favor of intervener upon a bank in which was deposited a check payable to the garnishee, but not yet indorsed by him, from which, upon indorsement, was to be paid the amount of defendant's debt. Defendant intended by the checks to transfer a portion of the fund to be thus created. Held, that the checks would not operate as an assignment to intervener of the debt due defendant from the garnishee, so as to defeat plaintiff's rights under his garnishment.

3. A check cannot operate as a transfer of anything but money actually to the credit of the maker in the bank.

Error to Huerfano county court.

Action by Henry Snedden against Henry Doerfler (Fred E. Cowing, garnishee). William L. Harmes intervened. From a judgment for intervener for amount of his claim, plaintiff brings error. Reversed.

H. A. Cole, for plaintiff in error. R. R. Ross and Henry Babb, for defendant in er

ror.

The

THOMSON, J. The plaintiff in error sued Henry Doerfler for a debt, and caused Fred E. Cowing to be summoned as garnishee. The defendant in error intervened, claiming that $94.20 of the money attached in the hands of Cowing belonged to him, having been assigned to him by Doerfler. The intervener had judgment for the amount of his claim. The intervener's title to the money depends upon the alleged assignment. amount owing by Cowing to Doerfler was $143. If there was an assignment, it embraced only a part of the demand. Such an assignment can be made only with the consent of the party from whom the money is due. It is not allowable to a creditor to split up his cause of action by assigning parts of it, thus creating as many new causes of action as there are assignments, without the concurrence of the debtor. Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467; Welch v. Mayer (Colo. App.) 36 Pac. 613. There was no pretense that Cowing ever consented, directly or indirectly, to this alleged assignment. The only evidence introduced in support of the allegation that the money was assigned to Harmes consisted of three checks, one for $33, one for $27, one for $34.20, drawn by Doerffler in favor of Harmes, upon Walsen & Wheeler's Bank at Walsenburg. The checks were never presented for payment. From some obscure statements in the record it may be gathered that, when the checks were drawn, there was some kind of a check in the bank payable to Cowing, and awaiting his indorsement in order to be converted into money, out of which the amount due Doerffler was to come; and that it was Doerfler's intention, by the checks upon the

bank, to transfer a portion of this fund. It is upon this supposed intention that counsel for the intervener rests his argument. We know of nothing more useless for any purpose than a naked intention. The checks could not operate as a transfer of anything except money to Doerfler's credit in the bank. No intention, however well defined or distinctly expressed, could convert them into an assignment of the debt due from Cowing to Doerfiler. The intervener had no standing below, and he has none here. The judgment will be reversed. Reversed.

(5 Colo. App. 466)

McQUOWN v. THOMPSON. (Court of Appeals of Colorado. Jan. 14, 1895.) CONFLICTING EVIDENCE-DIRECTING Verdict. Where the facts are in dispute both by the pleadings and evidence, it is error to direct a verdict.

Appeal from district court, Arapahoe county.

Action by Fred A. Thompson against Lowena McQuown. From a judgment for plaintiff, defendant appeals. Reversed.

J. W. Horner and P. B. Godsman, for appellant.

THOMSON, J. Appellee was a real-estate agent, and brought this suit against the appellant to recover $350 as a commission charged for negotiating a sale of real estate belonging to her. After the evidence on both sides had been introduced, the court instructed the jury as follows: "Under the undisputed facts of this case as they appear from the pleadings and the evidence, the plaintiff is entitled to recover the usual and regular rate of commission prevailing in the city of Denver for making sales of real property, which in this case to be $350. You will therefore return a verdict in his favor for that sum." An instruction like this can be justified only where the pleadings and evidence leave no room for a difference of opinion, and where the judgment which should be rendered is manifest and indisputable. If there is conflicting evidence concerning any material fact, or if the facts are involved in doubt, the case must be submitted to the jury by proper instructions, and to direct a verdict is a usurpation of their province. The complaint alleges a promise by the defendant to pay the sum charged. It also alleges that the charge was fair and reasonable. The answer denies the promise, and denies that the charge was fair or reasonable. It also sets forth that the defendant was induced to receive, in place of money, as part of the consideration of the property, two notes aggregating $1,400, by representations of the plaintiff, made as of his own knowledge, and upon which she relied, that the notes were well secured, and were worth their full face value in cash; whereas they

(5 Colo. App. 452)

GOFF et al. v. BAKER (LANDON, Intervener).

(Court of Appeals of Colorado. Jan. 14, 1895.) ATTACHMENT-INTERVENTION 1- SALE OF PERSONALTY-CHANGE OF POSSESSION.

In

1. On the trial of the issues on an intervention in the attachment of a horse, defendant and intervener, who were brothers-in-law, testified that the former owed the latter $100 on notes; that after the attachment issued, and before levy, intervener bought the horse of defendant, without having seen it, or taking possession, paying therefor $26.75 in money, besides the indebtedness, and that defendant's wife made intervener a bill of sale thereof. tervener testified that he held four notes against defendant, but did not know the amount of each, nor the aggregate of all, and that he “didn't turn them over." Defendant testified that the notes were turned over, and by him destroyed, pending the action. On the former trial in justice's court neither mentioned any notes, but testified that the indebtedness was for work, and that the amount of money paid was $27.50. Held not to sustain a judgment for intervener.

2. Under the statute of frauds (Gen. St. § 1523), the sale of a horse without delivery of possession is void as to the seller's creditors, though the purchase price is paid.

Appeal from county court, Arapahoe county.

Action in justice's court by Frank C Goff and others against H. O. Baker, accompanied by attachment. E. R. Landon intervened. There was a judgment for intervener, and plaintiffs appealed to the county court. From a judgment on appeal by default for intervener, plaintiffs appeal. Reversed.

N. Q. Tanquary, for appellants.

REED, J. Plaintiffs, on the 9th day of May, 1893, sued out an attachment against one H. O. Baker, which was levied on the 16th of May, upon one of two horses at pasture some miles in the country. The proceedings were commenced before a justice of the peace. E. R. Landon intervened, and moved the court to dissolve the attachment, "on the ground that the defendant was not the owner of the property attached," etc. A trial was had, resulting in a judgment for intervener. An appeal was taken to the county court, the defendant made default, a trial was had, resulting in a judgment for the intervener, and an appeal prosecuted to this court. The testimony was indefinite and unsatisfactory, that of the defendant be

He testified that he purchased the horse from one Olin, and paid for it by putting screens in buildings owned by Olin; that he bought the animal about the middle of April; that about the 1st of May he went to Olin, and got a bill of sale to his wife. This was corroborated by the testimony of Olin. The defendant, Baker, further said: "He took the mare to pasture May 9th. The plaintiffs were after me at this time to pay the debt." Both Baker and the intervener testified that Baker was indebted to the intervener in the sum of $100, for which the latter had had his notes for two or three years; that, on the morning of May 13th, Baker and wife were returning from Aspen, met intervener at Pueblo, at 5 o'clock in the morning, and he proceeded to buy the mare, which he had never seen; that he bought from Baker when his wife was not present, the consideration being Baker's indebtedness and $26.75, then paid in money; that Mrs. Baker was then called upon, and made and delivered a bill of sale. Between Baker and intervener, in giving an account of the transaction, the evidence in regard to the notes got considerably tangled. Landon testified that his wife and Mrs. Baker were sisters; that Baker had owed him something like $100 for three years, and he held his notes for it; that on the morning of May 13th, when the trade was made, was the first time he ever had any conversation in regard to buying the horse. "I had nothing to do with his wife in a business way. I held four of Baker's notes. I don't know how much they were each. I haven't looked at them for over two years. I don't know what the face of the notes were." "I didn't have the notes with me. I didn't turn them over." Baker testified: "The notes which were returned to me I destroyed. No one was present when they were given to me. I tore them up, and put them in the fire, after the trouble had come up about the mare, while these suits were pending." Two witnesses, who were present at the trial before the justice of the peace, testified that both Landon and Baker gave a different account of the transaction upon that trial; that nothing was said about promissory notes, but that Baker owed Landon $100, for work; and both testified that the amount paid by Landon in money at Pueblo was $27.50, instead of $26.75, as sworn in the county court. It is evident that Mrs. Baker never was the owner of the horse; that her pretended ownership was a ruse to prevent her husband's creditors from taking it. It also looks as if the pretended sale to Landon was collusive and fraudulent, and concocted for the same purpose. The fraud was so patent, the evidence should have been disregarded.

The judgment must also be reversed from the fact that there was no delivery of the horse, either actual or constructive. "Every sale made by a vendor of goods and chattels

in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold and assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith, and this presumption shall be conclusive." Gen. St. § 1523. See Bassinger v. Spangler, 9 Colo. 175, 10 Pac. 809; Baur v. Beall, 14 Colo. 383, 23 Pac. 345; Goard v. Gunn, 2 Colo. App. 66, 29 Pac. 918. The judgment will be reversed, and cause remanded. Reversed.

(5 Colo. App. 467)

HERR v. BROADWELL.

(Court of Appeals of Colorado. Jan. 14, 1895.) EXECUTION LEVY VALIDITY ACTION TO SET ASIDE ADEQUACY OF PRICE.

1. Where the judgment plaintiff is the purchaser at the execution sale, the judgment defendant may, in a direct, action, question the validity of the levy.

2. In the absence of a statutory provision for the levy of execution on land in the county where the judgment was rendered, a sale on execution is valid, without an indorsement of the levy on the writ, where the return thereto, made during the life of the writ, contains a copy of the notice of sale, which recites a levy under the writ.

3. A sale of land on execution will not be set aside for inadequacy of price where the land was incumbered for nearly its sworn value.

Appeal from district court, Arapahoe county.

Action by James M. Broadwell against Theodore W. Herr. From a judgment for plaintiff, defendant appeals. Reversed.

T. J. O'Donnell and W. S. Decker, for appellant.

THOMSON, J. This is a proceeding to cancel a sheriff's deed to real estate, and permit the plaintiff to redeem the property, on the grounds that no legal levy of the execution upon the land was made, and that the price for which the property was sold was inadequate. The facts are these: Herr had recovered two judgments against Broadwell, -one in an action numbered 9,999, for costs; and one in an action numbered 11,052, for $64.55 and costs. On the 18th day of July, 1890, execution was issued upon the judgment in case No. 9,999; and on the 26th day of August, 1890, an alias execution was issued upon the judgment in case No. 11,052. No levy was indorsed upon either of the executions. On the 30th day of August, 1890, the sheriff advertised certain real estate of Broadwell, situate in Arapahoe county, for sale upon the executions, in the Colorado Graphic, a weekly newspaper published in the city of Denver. The advertisement was published for the statutory period, the first publication being August 30th, and the last

September 20th. The return of the sheriff upon the executions was that he had executed the writs by selling the real estate theretofore levied upon, and described in the advertisement of sale, and which advertisement was attached to, and made a part of, the return. The advertisement recited that by virtue of the writs of execution, describing them, he (the sheriff) had levied upon and taken in execution, in each of the cases, all the right, title, and interest of Broadwell in the real estate described, which he would offer for sale, etc.

The first question to be considered is whether there was any levy made by the sheriff upon the property prior to the sale, and, if so, whether there is any legal evidence of the levy. As between Broadwell and a stranger, purchasing without notice or knowledge of any irregularities of the officer in the execution of his writ, the question could not arise, because the purchaser would have the right to presume that all the acts of the officer under the writ prior to the sale were in compliance with the law. He would be bound only to know that there was a valid judgment, upon which execution was regularly issued, and that the land had been properly advertised for sale. His title would rest upon the judgment, the execution, the sale under it, and the sheriff's deed. Jackson v. Sternbergh, 1 Johns. Cas. 153; McEntire v. Durham, 7 Ired. 151; Blood v. Light, 38 Cal. 649; Holman v. Gill, 107 Ill. 467.

But in this case the purchaser was the judgment plaintiff, and this is a direct proceeding to avoid the sale; so that the acts of the officer while the execution was in his possession are perhaps a proper subject of inquiry. A party is probably not entitled to the benefit of presumptions of which a stranger may avail himself; and upon the hypothesis that he is not, and that, in this form of action, his title depends upon the regularity of the acts of the sheriff, a determination of the question whether a sufficient levy was made prior to the sale becomes necessary. A levy upon personal property is made by the officer having the writ seizing the property, and taking it into his possession, but in the case of real estate a levy cannot be made in this manner. The sheriff cannot enter into the possession of real property, or in any way interfere with or disturb the possession of the debtor. When a writ of execution is issued from the district court of one county to the sheriff of another, and levied upon real estate in the latter county, our statute provides that the officer shall make and file in the recorder's office of his county a certificate of the levy. Gen. St. 1883, §§ 1884-1886. But the law prescribes no method of procedure where the real estate is in the same county in which the judgment is rendered. In such case, as to the manner in which the levy shall be made, or how it shall be evidenced, the statute is silent. There is no appearance for Broad

well in this court, and we are without the benefit of any suggestions upon the subject which might have been made in his behalf; but from the pleadings and evidence, and the opinion delivered by the trial judge in deciding the case, it would appear that the plaintiff's contention was that the levy, to be effective, should have been indorsed upon the executions. Where the acts necessary to a valid levy are prescribed by law, it is only necessary to follow the established procedure, and in a given case there is nothing for decision except whether this has been done or not; but where, as in this state, there is no legislation upon the subject, the question of what constitutes a sufficient levy upon real estate is not always easy of resolution. As the officer cannot reduce the land to possession, or do any act upon it against the will of the owner, all that can be required is that he designate the particular land which he intends to subject to his execution in such way that it may be identified, and this he can do without leaving his office if he has the proper information. The designation is a mental act; but, in order that it may be valid as a levy, it must be embodied in some visible memorial,-some record of what was done, accessible to the judgment debtor and to the public. Strictly speaking, the record is not itself the levy; it is merely the evidence that the levy was made. But, as the statute does not require that the record shall be made upon the writ, no reason is apparent why it may not be made elsewhere, provided it is equally public and permanent. See Vroman v. Thompson, 51 Mich. 452, 16 N. W. 808; Hamblen v. Hamblen, 33 Miss. 455; Rodgers v. Bonner, 45 N. Y. 379; Duncan v. Matney, 29 Mo. 368. In this case the fact of the levy was not indorsed upon the executions; but during their life, and by their authority, the sheriff advertised certain specified real estate for sale. The advertisement set forth that the officer had levied upon the property by virtue of the executions, and this advertisement was incorporated into his return upon the writs, and so became a part of the record of the cases. Here was a record of the levy, which was made in such manner that it was notice to all the world of the fact. It was certainly as public and as accessible as if it had been indorsed upon the executions; and, upon being made a part of the return, it became a permanent memorial. We think the levy was valid, and the evidence of it sufficient.

Gross inadequacy of consideration is a circumstance to be considered in connection with other facts where it is sought to set aside a sale of real estate, but alone it is not sufficient. In this case, however, it is not clear that the price paid was greatly less than the property was worth. It was bid off for $118.35. It was shown to be worth from $3,500 to $4,000; but it appears from the evidence that it was incumbered to an amount nearly equaling its sworn value.

There was no proof of fraud in the sale, or of any other fact which would authorize a court of equity to disturb it. The judgment will be reversed. Reversed.

(5 Colo. App. 427) GERMAN NAT. BANK OF DENVER v. NATIONAL STATE BANK OF BOULDER. (Court of Appeals of Colorado. Jan. 14, 1895.) NOTICE OF GARNISHMENT - MISTAKE IN DEBTOR'S NAME-EFFECT-KNOWLEDGE OF GARNISHEE.

1. Notice of garnishment served on a bank, naming the debtor as "W. J. M.," does not reach money due at the time by the bank to "W. G. M.," and subsequently paid out by it, unless the bank had actual knowledge of the identity of the debtor and the person named in the process.

2. In such a case, testimony of a witness that, from a conversation he had with the cashier of garnishee, he got the "impression" that the cashier was at the time aware of the debtor's identity, and the testimony of another witness that he understood from the same conversation that the cashier knew who was intended, "because there was not a word in his conversation to the contrary," will not sustain a finding that the cashier knew of the debtor's identity, where the cashier testified that he "did not in that conversation say, either directly or in substance or effect," that he knew who was meant by the garnishee writ.

Appeal from district court, Boulder county. Action by the National State Bank of Boulder against W. G. Motley, followed by attachment (German National Bank of Denver, garnishee). From a judgment for plaintiff, the garnishee appeals. Reversed.

Hartzell & Patterson, for appellant. R. H. Whiteley, for appellee.

REED, J. This case was before this court on a previous occasion. See 3 Colo. App. 17, 31 Pac. 122. In 1890, W. G. Motley was indebted to appellee on a promissory note, which became due in December of that year. In January, 1891, the bank brought suit upon the note, and sued out an attachment against W. J. Motley. Appellant was served with process of garnishment, with notice to answer indebtedness to W. J. Motley. The cashier of the bank answered, denying any adebtedness to W. J. Motley. The answer was traversed by appellee. A trial was had, resulting in a judgment against appellant. An appeal was prosecuted to this court, the judgment reversed, and cause sent back for retrial. The trial occurred April, 1893, again resulting in a verdict and judgment against appellant for the sum of $798.21 and costs, from which this appeal is prosecuted. By reference to the former opinion, it will be seen that this court held that the full name or proper initial letters were necessary in a proceeding of that kind, and that a writ of attachment and notice of garnishment against "W. J. Motley" would not reach moneys due "W. G. Motley." At the time of the service of notice upon appellant, it had funds of W. G. Motley in its possession, which it subsequently paid out in full upon

checks. We are perfectly satisfied with the former opinion, on the case then made, and affirm it. In the intricate and complicated business of banking, absolute exactness and particularity in regard to names is absolutely indispensable, not only for the security of the bank, but of those doing business with it. In many instances there are many of the same surnames, and frequently with the same first initial letter; and, where the full name is not used, it frequently occurs that the second or intermediate initial is all that distinguishes one name from another; and a bank disregarding the middle initial as a part of the name would be very likely to find itself in trouble by allowing one man to draw upon the account of another. If such trouble occurred, no bank could shield itself from responsibility by ignoring the only distinctive difference between the names of two persons. When banks are necessarily held to such strict accountability, it is not asking too much that in proceedings against them the individual sought to be reached should be so designated as to leave no doubt in regard to the identity. Banks cannot presume that John A. Smith and John W. Smith are the same person. Creditors are supposed to know the names of their debtors, especially when, as in this case, the indebtedness is evidenced by a promissory note, and in bringing suit should be held to bring the suit against the proper person, or suffer the penalty of their own negligence. Where a person opens a bank account under a fictitious name, and the process is sued out in the real name, the identity should be established to the officers of the bank when it is sought to reach the fund. There is no doubt but that, if actual knowledge of the identity was brought home to the knowledge of bank officials, the bank would be held chargeable. In the former opinion of this court the learned judge who wrote it carefully guarded against any misconception, and said: "There was no showing in the present case that the bank had any knowledge whatever that their depositor was the one sought to be reached by the process at the time they paid out the money on his checks. Confining the decision to this particular class of cases, it is held that a garnishee is totally unaffected by any notice which may be served upon him, unless it properly runs with an accurate description against the individual to whom he may be indebted, unless it be in those cases where the proof may show that the garnishee had actual knowledge of the identity of the debtor and the person named in the process."

Upon the retrial of this case there was practically but one question to be determined, the question of knowledge and good faith upon the part of appellant. That the process ran in the name of W. J. Motley was conceded. It was also conceded that it was an error, and that the true name was W. G. Motley. In the former opinion in this case

the answer of the garnishee that the bank was not indebted to W. J. Motley was legally and technically correct. Consequently what remained was a question of bona fides,strictly a question of morals. By the former opinion that was made an element,-a factor; but the language of the court was: "Unless it be in those cases where the proof may show that the garnishee had actual knowledge of the identity of the debtor and the person named in the process." To recover, the proof must have established the actual knowledge. A careful examination of the evidence shows that it came far short of the requirement. Mr. Nicholson, the cashier of appellee, and Mr. Temple were the witnesses by whom it was sought to make proof of knowledge. Some days after appellant's answer was filed to the process of garnishment, they had an interview with Mr. Clinton, cashier of appellant, and the knowledge was attempted to be shown by admissions of Clinton. Neither could give the language used. One got the "impression" that he admitted he did know who was meant. The other (Temple) said: "I understand that he admitted that he knew who was intended, because there was not a word in his conversation to the contrary." No actual knowledge on the part of the cashier was shown or attempted. The supposed admissions attempted to be established were some days subsequent to the transaction, and were, if of any value, only what he then knew or thought, but not of knowledge at the time of the transaction. The evidence, even of such supposed admissions, was vague and indefinite, apparently the result of inferencé or presumption; and not based upon anything said by Clinton, who testified: "I had no knowledge as to who was meant." In reference to the conversation Mr. Clinton said: "I did not in that conversation say, either directly or in substance or effect, that I knew who was meant by the garnishee writ. It was not true."

The verdict of the jury was unwarranted by the evidence. There was no evidence upon which it could be based; was evidently the result of prejudice, or based upon presumptions from the facts; was not in obedience to the instructions of the court, which were: "If the jury believe from the evidence that the garnishee bank, through its cashier, Clinton, knew that its depositor W. G. Motley was the one sought to be reached by the process of garnishment herein at the time they paid the money on his checks after garnishment, then the plaintiff is entitled to recovery." "You are further instructed that it is incumbent on the plaintiff to prove its case by a preponderance of the evidence." Both were violated by the verdict, bringing it clearly within the exception to the general rule of the conclusiveness of verdicts as to the finding of facts. There was no evidence of any knowledge on the part of appellant's officers. The evidence attempting to estab