#### Mayer vs. Webster and another.

In an action to recover personal property, against the officer who seized the same on execution as the property of a judgment debtor, on whose premises the property was kept, the plaintiff claiming under a sale made by said debtor sub' sequent to the judgment against him; *Beld,*that the evidence for the plaintiff as to the circumstances attending the sale was not sufficient to rebut the presumption of fraud raised by the statute.

APPEAL from the Circuit Court for *Milwaukee*County.

In 1863, the defendant *Webster*was sheriff of said county, and the other defendant, *Wason,*his deputy. One Knox, who *394had obtained a judgment in tbe circuit court for said count j against one Allmeyer, caused execution to be issued thereon; under which *Wason,*about the 22d of May, 1863, seized an omnibus as the property of Allmeyer. *Mayer*thereupon brought his action before a justice of the peace to recover possession of the omnibus and damages for its detention. The sheriff took possession of the property under a warrant for that purpose, during the pendency of the action. The justice rendered judgment for the defendants, and the plaintiff appealed to the county court. On the trial in that court, it appeared that the plaintiff claimed the property under a bill of sale from Allmeyer, which was put in evidence, and purported to have been executed on the 16th of May, 1862, and was witnessed by two persons. It included, besides the omnibus in question, a two horse wagon. Allmeyer testified that he executed said bill of sale and delivered it to the plaintiff on the day of its date ; that at that time witness was indebted to plaintiff in the sum of $138, money loaned to him by plaintiff in several different loans of $50, $46 and $42 respectively, all of them made several months prior to the date of the bill of sale; that from the beginning of 1861, witness had boaráed recruits and soldiers in considerable numbers at his house (which was a saloon and boarding house) ; that he borrowed said money of plaintiff to use in that business, and expended it therein; that he lost money by the business, and was unable, in consequence, to pay the plaintiff except by a sale of the property to him, and therefore sold the same to him, at his request, for $150; that plaintiff accordingly paid him $12 in cash on the day said bill of sale was executed, being the balance of the purchase price; that plaintiff had boarded with witness several years before said sale ; that at the time of the sale plaintiff was not indebted to witness in any sum on account of board or anything else; that witness, at plaintiff’s request, sold the wagon described in the bill of sale for $39, and paid the money to plaintiff, and this payment was *395made before tbe seizure of the omnibus l?y *Wason ;*that at tbe time of said sale, tbe omnibus was in tbe sbed in tbe back yard of tbe premises belonging to witness, and after tbe sale it remained there at plaintiff’s request; that after tbe sale of tbe wagon above mentioned, witness, at plaintiff’s request, let tbe omnibus for hire to divers persons, at $1.75 per day, and received tbe money for the use thereof, amounting in all to $14, two dollars of which be paid to plaintiff, and applied tbe remainder, at bis request, in part payment of plaintiff’s board.— On cross-examination, tbe witness testified that at tbe time be borrowed moneys from the plaintiff, as mentioned in bis direct examination, be did not give him any note, receipt or paper writing for tbe same or any part thereof, nor did plaintiff, at tbe time of tbe sale of said property, give witness any receipt or acquittance for tbe payment of said borrowed money, or any part thereof, because they did not deem it necessary *;*that plaintiff requested witness to hire out tbe omnibus about two months after tbe sale, and in tbe meantime it remained in tbe sbed on witness’s premises; that afterwards witness moved to another bouse and took tbe omnibus with him there; and that it was standing in tbe shed on tbe last mentioned premises when seized on the execution against him. Another witness, called for tbe plaintiff, testified that be was. present at tbe time of the execution of tbe bill of sale from Allmeyer to plaintiff, and was one of tbe subscribing witnesses ; that soon after tbe execution and delivery be left tbe bouse of Allmeyer, where tbe business was transacted ; and that be did not see any of tbe property described in tbe bill of sale delivered to tbe plaintiff, nor any money paid by plaintiff to Allmeyer. Another witness, called for tbe plaintiff, testified that. in April, 1862, be was a constable in tbe city of Milwaukee, and bad an execution against Allmeyer delivered to him, by virtue of which be levied upon tbe omnibus in question, but tbe claim was settled by Allmeyer; and that after tbe date of *396said bill of sale, in tbe summer and fall of 1862, be frequently saw Allmeyer using tbe omnibus.

Tbis is all of tbe evidence wbicb bears upon tbe question of good faitb in tbe sale of tbe property in question to tbe plaintiff. Tbe county court found as facts, *inter*alia, tbat at tbe time of tbe execution of said bill of sale tbe omnibus was not removed, but was left in tbe possession of tbe vendor Allmeyer, until levied upon by virtue of tbe execution against him; and tbat it did not appear from tbe evidence tbat said sale was made without any intent to defraud tbe creditors of said All-meyer. As a conclusion of law, tbe court held the defendants entitled to judgment for a return of the property, or its value, with damages for its detention, &c. Judgment accordingly ; from wbicb tbe plaintiff appealed.

*E. Fox GooJc,*for appellant.

*Thomas M,*Knox, for respondent.

*By the*Court,

Cole, J.

Tbe county court found tbat tbe sale of tbe chattels in tbis case was fraudulent and void as to creditors, because there was no actual and continued change of possession of tbe property sold, and no evidence was offered by tbe appellant, claiming under tbe sale, tbat it was made in good faitb and without any intent to defraud. Tbe finding of tbe court upon tbis point is most amply sustained by tbe evidence. It is difficult, on reading tbe testimony of the vendor as detailed in tbis record, to resist tbe conclusion tbat tbis whole transaction was a sham, a mere device resorted to by a dishonest debtor to place bis property beyond tbe reach of bis creditors. Tbe presumption of fraud, wbicb tbe statute raises from tbe fact tbat there was no actual change of possession of tbe chattels sold, so far from being rebutted by tbe evidence, was very much strengthened by all tbe proof given on tbe trial.

We think tbe judgment of tbe county court is correct, and must be affirmed.