| Cal. | Jul 1, 1857
delivered the opinion of the Court—Burnett, J., concurring.
The facts found by the Court below do not warrant the judgment. So far as they are set out, they go to establish that the sale was bona fide.
The judgment of the Court seems to be predicated on a supposed want of delivery, and actual and continued change of possession, making the sale a constructive fraud. We think that this position is rebutted by the facts found, and that all was done which, under the circumstances, was necessary to pass the property from the vendor to the vendee. It was not necessary for the vendee to remove the property from the house where it was at the time of the purchase, to bring himself within the statute.
The parties seem to have done all that could necessarily have been required of them. The flour was sold as eight hundred sacks, containing so many pounds; it was placed in a separate pile, in the house; the number of sacks ascertained by counting one of the outside rows, and the number marked on one of the sacks; it was thus delivered to the purchaser, and the price paid in money, and so remained for several days before it was attached.
We are ata loss to know what other act should have been done to render the sale valid.
Judgment reversed, and cause remanded.