Appeal from the Circuit Court for Washington County; McLaughlin, J.
Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ. Horney, J., delivered the opinion of the Court.
The question presented by this appeal is whether the trial court was in error when it found that Fred Drury was not the owner of sixteen of the cows claimed by him that had been levied on by the sheriff under several writs of fieri facias as property belonging to Nelson Drury.
Fred Drury (the claimant) and Nelson Drury (the judgment debtor) are father and son, respectively, and are often herein referred to as such. As a livestock dealer, the claimant had regularly engaged in the practice of placing dairy cows on the farms of others under an arrangement whereby the dealer retained title to the cows and offspring and the farmer received the milk produced by the cows. The father had such an arrangement with the son.
In August of 1959, the judgment debtor purchased fourteen cows from Sam Pashen (the judgment creditor), and gave him his promissory note for at least a part of the purchase price. Apparently it was on this note that a judgment was entered, and apparently it was under that judgment that two of the executions were issued.
The Sheriff of Washington County went to the farm rented by the judgment debtor from Edison Y. Groh on June 3, 1960, with a writ of fieri facias. The judgment debtor was at home and accompanied the sheriff and his deputy to the pasture where fifty or more cows were grazing. (There is a conflict in the evidence as to whether the father was also present on that occasion.) At that time, the son pointed out and the sheriff levied on twenty-three cows -- described in the return as "3 Guernsey cows" and "20 Holstein cows" -- that the son claimed were his, and, though he did not state to whom the others belonged, he did say they were not his.
Prior to October 18, 1960, a second writ had been issued, and on that date the sheriff found on the farm and levied on thirty milk cows (and one heifer) -- described in the return as "30 milk cows (26 black and white [and] 4 red and white)" -- despite the protests of the father (and claimant), who was present on that occasion, that twelve or thirteen of the cows (as well as three bulls not in controversy) belonged to him. This was the first time, though it appears he must have known of the previous levy, that the father had told the sheriff that he claimed any of the cows taken in execution. The son (and judgment debtor) was not at home on this occasion.
On December 20, 1960, the sheriff, having received information that cows were being removed from the farm, armed himself with a warrant for the arrest of the son and again
visited the farm. Both the father and son were present on this occasion. At that time, the sheriff saw, and listed, thirty-eight head of cattle by their colors, breeds and ear tag numbers. And when the sheriff demanded that the son account for the cows that had been taken in execution on the two prior occasions, the son, in the presence of the father, stated that the cattle they were then looking at included the same ones taken in execution on June 3, 1960, and the father made no comment one way or the other as to this fact, though he afterwards asserted that he owned all thirty-eight of them and produced vaccination slips that compared with the listed ear tag numbers that had just been recorded. Apparently the son was not arrested.
On December 22, 1960, the sheriff again returned to the farm and made a third levy for the owner of the farm. On this occasion, although the thirty-eight head of cattle last listed were still on the farm, only the thirty cows described in the second levy were scheduled by the sheriff.
At the hearing on the petition of the claimant, in addition to that hereinabove related, there was evidence that after the second levy had been laid, the son, claiming that he had saved the money, made a payment of $1500 on the judgment. There was evidence that after the partial payment, the father, together with the son, called on the judgment creditor to make arrangements for payment of the balance due (which subsequently fell through for want of an endorser on a new note), but made no claim that the property levied on by the judgment creditor belonged to the claimant. There was evidence that between June and December of 1960 the father had transferred cows from his farm to that of the son and vice versa and that there had been an intermingling of the cows of the son with those of the father. There was some evidence that there had been switchings of ear tag ...