This action was brought to recover the value of two hundred and eighty-two thousand feet of lumber al
The principal quеstion in the case is whether the defendant took actual possession of the lumber prior to an assignment made by the vendor for the benefit of creditors.
It appears that, on April 12, 1913, E. A. Holston, doing business under the name of Holston Lumber Company, wаs indebted to the Fidelity National Bank in the sum of $3,000. On that date Mr. Holston executed a bill of sale for “One million two hundred thousand feеt of pine logs decked in mill pond at the company’s mill, Boyds, Washington, and all the lumber sawed therefrom and piled in the yards оf the company.” This bill of sale was filed for record on April 23, 1913, in the auditor’s office of Ferry county, where the mill was located. It is conceded that this bill of sale was taken as security for the money then owing by Holston to the bank. At that time Holston was indebted to other persons. After-wards, in December, 1914, Mr. Phelps, representing the defendant bank, went to the mill of Mr. Holston, and Mr. Holstоn authorized Mr. Phelps to take possession of certain lumber then in the yard, to sell the same, and credit the amount received upon the note, upon which there was then due about $1,000. Mr. Phelps thereupon checked up the lumber, and employed a Mr. Wilson to haul the lumber from the mill to Boyds, which was a railroad station. It appears that this station was several milеs from the mill, and, on account of the condition of the roads, it was necessary to wait for snow before the lumber cоuld be moved. There is some evidence that a small portion of the lumber was hauled by Mr. Wilson to Boyds during the month of December.
It is strenuously argued by the appellant that there was no manual delivery of the lumber to the bank prior to the time of the assignment by Mr. Holston to Mr. Haskins for the benefit of creditors, that the evidenсe shows that Mr. Phelps simply checked over the lumber, and that there was no outward indication of any change of possession from Mr. Holston to the bank.’ It is no doubt true that there was no outward open possession indicated after Mr. Phelps had left the property. But it was not property of which manual possession could be taken. It was lumber piled in the yards of the mill.
In Churchill v. Miller,
“35 Cyc. 311, 312, is cited to the effect that the general rule is that the delivery must consist of an actual and continuous transfer of property. This rule must be applied, however, in view of the character and situation of the property and circumstances. Although such possession as a purchaser can reasonably take must be taken, it is not essential, as against creditors and subsequent purchasers, that there should be in all cases an actual manual delivery or a change of possession at the time of the sale, or immediаtely; citing*66 also 5 It. C. L. 397. The rule is stated in 35 Cyc. 312, as follows:
“ ‘It has been held that it is sufficient as against creditors and subsequent purchasers if notice of the sale is given to the third person in possession, unless his possession is of such a character that it does not convey any notice to the world of the change of ownership . . ”
We think that rule should apply to this case. There wеre no liens upon this lumber at the time Mr. Holston agreed the bank might take it. The agent for the bank came, looked over thе lumber, and took it. He employed a man to take charge of and haul the lumber to the railway station, some distancе away. He took such possession as a purchaser could reasonably take, and, quoting from the rule above stаted, “it is not essential, as against creditors and subsequent purchasers, that there should be in all cases an actual manual delivery or a change of possession at the time of the sale, or immediately.” We are satisfied, therefore, thаt the court properly found that there had been an actual change of possession; and also that the assignee took with notice of the claim of the bank at the time of the assignment.
It is next argued that the value of lumber taken which was not included within the sale or delivery, and which was found by the court to be of the value of $144.56, should have been found to have been of the value of $353. There was dispute in the evidence as to the value of this lumber, and it was therefore for the cоurt to find, according to its best judgment, what the value was. After reading the evidence we are not disposed to find a greater value than was found by the trial court.
The appellant also contends that the bill of sale without an affidavit of good fаith does not constitute a mortgage. Where the vendee takes possession of the property prior to the timе other claims are made thereon, he is entitled thereto, even though his bill of sale or chattel mortgage may be invalid as such because not properly recorded. Watson v.
We find no error in the record, and the judgment is therefore affirmed.
Morris, C. J., Fullerton, and Ellis, JJ., concur.