25 Cal. 197 | Cal. | 1864
The plaintiff, who was a creditor of the firm of Miller & Miller in the sum of about seven thousand and six hundred dollars, purchased of them on the 7th of August, 1861, two parcels of real property, one of which was in the City of Sacramento, and the other (a farm) was about eight miles therefrom. The price at which he so purchased was six thousand dollars, and the payment was made by a credit of the "Millers with that sum on their debt. A deed of conveyance was executed by them to the plaintiff and duly recorded' on that day. To satisfy the balance still .due, the Millers on the same day sold to plaintiff certain personal-property which was upon the farm and delivered the same to him. The plaintiff at the time employed one Minott, who was then in the service of the Millers oh the farm, to take the charge and care of this personal property for him. Minott accepted the employment and remained in charge of the property until it was taken from him by the defendants; and one of the Millers also remained upon the farm, though it does not distinctly appear that he was there to the plaintiff’s knowledge or by his consent. •
■ Three days after these sales were made, George W. Stewart
The defense interposed was that the sale was made to hinder, delay and defraud the creditors of the Millers, and also that such sale was not accompanied by an immediate delivery of the property sold, nor followed by an actual and continued change of the possession thereof from the vendors to the vendee.
At the trial of the issues joined much evidence was introduced and submitted to the jury respecting the bona fides of the sale, and also touching the delivery and actual and continued change of possession. The case was submitted, under instructions of the Court, to the jury, who rendered a verdict for fifteen hundred dollars in favor of the plaintiff against the defendants, on which judgment was entered.
The defendants having appealed from the judgment and an order denying their motion for a new trial, have presented a bill of exceptions to portions of the charge of the Court, and now insist that the judgment ought to be reversed for the causes arising upon their bill of exceptions.
At the request of the defendant’s counsel, the Court instructed the jury that, “To make.a sale valid the delivery must be made of the property sold; the vendee must take the actual possession; that possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee. It must be such as to give evidence to
The defendants’ counsel excepted to so much of the instruction as is in this language: “ Being in possession of the real estate, he was also in possession of the personal property.” To understand the point it is necessary to look to what preceded the words particularized by the exception; and when the whole instruction is considered, it appears to have been left to the jury to decide, after assuming it as a fact that the plaintiff was the owner and in the possession of the farm, whether or not he was, at the time the property was attached, in its possession.
There are two kinds of possession of real property—the'one constructive, the other actual—the one depending upon the title and the present right to the actual possession, and the other subsisting in the actual occupation or the possessio pedis. The question as to the plaintiff’s actual possession of the farm, was a point involved in the trial before the jury, so far as the possession of the personal property in controversy was made to depend upon the possession of the farm.
What constitutes an actual change of the possession of personal property, as distinguished from that which by mere intendment of law follows the transfer of title, is not of difficult solution. It is an open, visible change, manifested by-such outward signs as render it evident that the possession of the vendor has wholly ceased. (Randall v. Parker, 3 Sand. 73.) Then if the possession of the property by the vendors, in the case under consideration, had not wholly ceased when it was attached, it was liable to the attachments, notwithstanding, as between the vendors and vendee, the sale was complete and the title to the property had become vested in the plaintiff as the purchaser.
The possession by the plaintiff of the farm upon which the personal property was when it was purchased by him, provided it was an actual and exclusive possession, would be strong evidence of the like possession of such personal property ; but so long as the vendors, or either of them, remained upon the farm, if with the plaintiff’s knowledge or consent, the Court could not properly exclude from the jury the determination of the question as to whether the vendors or vendee was in the actual possession of the farm, or whether the possession was not jointly held by them. If the actual and exclusive possession of the farm by the plaintiff would be
The other objections assigned by the appellants we deem untenable when the instructions given to the jury at the request of the plaintiff are considered in connection with the qualifying instructions of the Court.
As the case must be remanded for a new trial, it is proper to express our opinion in reference to proving the declarations of the vendors concerning the transaction after the sale was made and the property delivered so as to pass it to the purchaser. This species of evidence is, as a general rule, inadmissible, and is never to be received unless it appears that the vendors’ declarations were made while in possession of the property, with the knowledge or consent, express or implied, of the vendee, in which case their declarations made while in possession of the property attached might be considered as of the res gestee.
The judgment is reversed and the cause remanded for a new trial.