9 Colo. 365 | Colo. | 1886
The principal error assigned relates to the withdrawal of the case from the consideration of the jury, when upon the trial on the merits in the superior court, by an instruction to return a verdict for the defendants. It is inferable from this action that, in the judgment of fihe court, the plaintiffs, Bailey & Allen, had failed to establish a legal ownership or right of possession of the property described in this writ of replevin. The ground of the motion was that the requirements of the statute of frauds had not been complied with in the sale and delivery of the property to the plaintiffs. It was not claimed that the transaction was fraudulent in fact, but that immediate delivery of possession not having been made upon execution of the bill of sale, as required by the statute, the law presumed the transaction to be fraudulent and void.
The statutory provisions referred to, being the fourteenth section of the statute of frauds, are as follows:
“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 or 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.
Addressing our attention to the question of the sufficiency of the delivery and change of possession, it is proper, in the first instance, to consider the nature of the transaction, as the same appears from the testimony of both parties. While the form of the transaction was a sale to Bailey & Allen, the testimony clearly shows it to have been a transfer of the property to them, in the nature of an assignment, charged with certain trusts. The trusts were that the property should be sold by Bailey &
In support of the proposition that there was not a sufficient delivery of the property, nor such a continued change of possession as the statute requires, we are referred to that portion of -the testimony which discloses that Kemp’s employees held bills of sale of the property, and that the stock, as counsel allege, was in their possession when it was seized in attachment by the defendant. A review of the testimony fails to show any delivery whatever of the property by Kemp to his employees, as purchasers,-under the bills of sale, or that the latter had ever demanded a delivery. The employees do not appear to have claimed as purchasers, nor to have construed their bills of sale as evidence of purchase, but as liens. held to secure payment of the wages due them, respect- ■ ively. The delivery, therefore, to Allen at the camp was good as to all the parties present and consenting to it, and he and his partner took the property charged with the several trust specified.
Had the sheriff arrived in camp that day, and executed his writ of attachment while the animals and other prop
The court erred in withdrawing the case from the consideration of the jury upon the facts and the law, and in directing a verdict for the defendant in error, for which error the judgment is reversed and the cause remanded.
Reversed.