20 Mont. 225 | Mont. | 1897
The appellants contend that the alleged sale of the sheep in -controversy by Graves to Cady was not accompanied by immediate delivery, nor followed by an actual and continued change of possession, and hence is conclusively presumed to be fraudulent and void, against the attaching creditor in this case. This is the only question raised by this appeal.
Harmon v. Hawkins, supra, decided merely a question of pleading. The complaint in that case set out the evidence of plaintiff’s title to the personal property mentioned in that case. The defendant demurred to the complaint on the ground that the complaint did not allege any delivery or change of possession of the property mentioned. The court simply held that the complaint was insufficient for the reason stated in the demurrer. In other words, this court held that the complaint in Harmon v. Hawkins did not allege a delivery or change of possession of the property mentioned therein.
In Story v. Cordell, supra, Cordell executed a bill of sale to the property in controversy, absolute on its face; but accompanying the bill of sale was an agreement between Cor-dell and the plaintiffs that, if Cordell paid plaintiffs’ indebtedness within a period fixed in the agreement, the bill of sale should be canceled. This court held that agreement to be, in effect, a chattel mortgage, but that, as it was not accompanied by an affidavit of good faith, or acknowledged and filed as required by the statute, it was void as against the creditors of Cordell. In that case this court further held that the marking of certain barrels of whiskey with a cross and the vendee’s name, and removing them from one part of the building occupied by Cordell to another part, did not constitute a delivery, as against third parties. In Story v. Cordell there was no parting with the ownership, and no change, or pretense of change of possession. It was, at most, a conditional sale of personal property.
The facts in the case at bar bring it more nearly, we think, within the rule of this court as announced in Dodge v. Jones, 7 Montana 121, 14 Pac. 707.
In that case this court said : “No particular act or formal
¡In the case at bar, when Graves turned over the 275 lambs to Cady, the latter placed the “bottle brand” on each of the sheep, which was evidently the brand of the plaintiff; and thus by this brand plaintiff’s sheep were distinguished from the other sheep belonging to Graves or anybody else, so that by such branding creditors of Graves might have been presumed to have notice that the ownership in the sheep thus marked had been changed from that of Graves to the plaintiff or some one else.
We think the rule announced by the Supreme Court of California in Porter v. Bucher, 98 Cal. 454, 33 Pac. 335, is appropriate to the facts of this case.
In that case, which was a very similar one to the one at bar in principle, the court said : “In the determination of the question as to the kind of possession necessary to be given in order to make a sale of personal property valid as against creditors, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. The law only requires that which could naturally be done in an honest and businesslike transaction, where there was no thought of «fraud or concealment. ’ ’
In this case there is no pretense of fraud or concealment. The transaction has attached to it no suspicion even. We think the court below was justified, from all the facts, cir
This being the only question before this court, we are of the opinion that the judgment should be affirmed, and it is so ordered.
Affirmed.