51 P. 109 | Idaho | 1897
This is an appeal from an order granting a new trial. On the third day of September, 1895, the plaintiffs, being partners under the firm name of Hallett & Morrison, purchased of one C. J. Landon “seven thousand bushels of O. K., No. 1, marketable wheat, to be delivered at top of tramway on or before sixty days; loss or damage by fire to be carried by the party of the first part.-” This sale was evidenced by an instrument in writing signed by C. J. Landon, attested
The transcript in this ease is quite voluminous, and very many errors in the admission of testimony are alleged; but, in the view we take of the case, it will be unnecessary to review them. We think our statutes, and the repeated decisions of this court thereon, are conclusive. (Harkness v. Smith, 3 Idaho, 221, 28 Pac. 423.) Section 3021 of the Revised Statutes of Idaho provides: “Every transfer of personal property other than a thing in action, and every lien thereon, other than a mortgage, when allowed by law, is conclusively presumed, if made by a person having at the time the possession ■ or control of the property and not accompanied by an immediate delivery and. followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void against those who are his creditors while he remains in possession, and the successors in interest, of such creditors, and against purchasers or encumbrancers in good faith subsequent to the transfer.” The sale of the wheat by Landon to plaintiffs in this ease is claimed to have been made September 3, 1895. The levy of execution by defendant was on September 23, 1895, twenty days after the time'of the alleged sale, and the wheat was still in the possession of Landon. We can scarcely imagine a case more clearly within the statute. Conceding the written contract to have been made at the time it purports to have been, to wit, on the 3d of May, 1895 (although upon this there is some doubt thrown), still it was but an executory contract. There was no delivery, nor any attempt