| Nev. | Jul 1, 1866
Opinion by
This action was brought for the purpose of recovering possession of certain personal property from the defendant, who is the Sheriff of the County of Lyon, and who justifies under a writ of attachment issued out of the District Court of his county. The plaintiff claiming title from Tregloan, the person against whom the attachment was issued, introduced in evidence a bill of sale from him of
It was also proven at the trial that a large portion of the personal property was kept in the cellar of the boarding-house, which, it appears, was not located on the premises conveyed by the deed of June 1st. This deed, though executed on the first of June, was not placed on record until the night of the thirty-first day of October, when the bill of sale was executed.
The plaintiff, Mr. Sharon, gives as a reason for this delay, that the deed was delivered to him with the understanding that at any time when he might consider the bank, for which he was acting, not entirely secure, the deed might be placed upon record. On the thirty-first day of October, the grantor, Mr. Tregloan, informed the plaintiff that he did not think he could discharge his indebtedness to the bank, and offered to surrender all his property in discharge of it; this offer was accepted, the bill of sale executed in compliance with this understanding, and the same evening the deed of the real estate was placed upon record. The deed conveyed the premises upon which the Swansea mill is located, together with the mill, batteries, engines, boilers, pans, and all other machinery belonging or appertaining thereto. It appears that there was a boarding-house owned and conducted by Tregloan in connection with this mill, but not located on the premises conveyed by the deed. Much of the personal property transferred by the bill of sale, was kept in the cellar of this boarding-house; the balance was kept on the premises conveyed by the deed.
On the morning after the execution of the bill of sale and the recordation of the deed, the plaintiff, by his agent, took possession of the premises. The agent also informed the persons who were employed at the boarding-house of the sale, and engaged them on behalf of the plaintiff to remain in his employ.
Tregloan delivered a bunch of keys to Johns, the plaintiff’s agent, among which was the key to a building occupied as the office; but it appears that the key to the cellar of the boarding-house, where .much of the property in question was kept, was not delivered with the others, it being in the possession of Mrs. Washburn,
In our opinion, it is a matter of no consequence in the decision of this question whether the deed from Tregloan to Sharon would in equity be considered a mortgage. The deed is absolute on its face, and a delivery of possession of the real estate took place under it. Whether that possession was obtained by virtue of a deed absolute, mortgage or lease, the result here must be the same.
As to the property kept in the cellar of the boarding-house, there seems- to have been no such delivery and change of possession as the law contemplates. That portion of the property was not on the premises conveyed by the deed, and the key to the cellar where it was kept was not delivered with the others, but remained in the possession of the servant until it was taken from her by the Sheriff. The boarding-house not being included in the deed of conveyance, of course continued to be the property of Tregloan. The servant which he had employed before the sale, continued in possession of the house and the personal property in the cellar. There was no change, or apparent change of the possession of that portion of the personal property. Everything remained the same after as before the sale, and the fact that that house had not been conveyed by the deed, would of itself raise the presumption that no change had taken place as to it, or the property in it. As to that portion of the property, nothing was done towards a change of possession, except the notification of the servant who had charge of it, that it had been sold, and the employment of her in the same capacity by the plaintiff.
The authorities are uniform that that would not be such delivery and change of possession as is required by the law. So it was held by this Court in the case of Doake v. Brubaker (1 Nevada, 218) and by the Supreme Court of California, in the case of Hurlburd v. Bogardus (10 Cal. 519" court="Cal." date_filed="1938-01-31" href="https://app.midpage.ai/document/brown-v-regan-1164846?utm_source=webapp" opinion_id="1164846">10 Cal. 519).
The transcript does not purport to contain all the evidence ad
So far as the question of fraud in the conveyance and sale to the plaintiff is concerned, we find nothing in the record which would in any manner justify the jury in arriving at the conclusion that any existed.
The judgment must therefore be reversed, and a new trial granted.