19 Cal. 320 | Cal. | 1861
Field C. J. concurring.
Upon examining the record in this case, we think the Judge below did not err in instructing the jury that the facts showed no valid sale, for want of such change of possession of the property in controversy as is required by the Statute of Frauds. The property' seems to have remained, to all external appearances, in the same condition in which it was before the sale, with nothing to notify third persons of the sale, or of the claims of the new owner. In Stevens v. Irwin (15 Cal. 506) we said : “ Delivery must be made of the property; 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 world of the claims of the new owner. He must, in other words, be in the usual relation to the property which owners of goods occupy to their property. This possession must be continuous—not taken to be surrendered back again—not formal, but substantial. But it need not necessarily continue indefinitely, when it is bona fide and openly taken, and it is kept for such a length of time as to give general advertisement of the status of the property and the claim to it by the vendee.” An application of these principles to the evidence shows that the case of the plaintiff is within the Statute of Frauds.
Judgment affirmed.