132 P. 549 | Mont. | 1913
delivered the opinion of the court.
This is an action in claim and delivery. The controversy is between W. H. Taylor, who claims to have purchased the property from C. R. Buffington, the original owner, on the one hand, and, on the other, the Malta Mercantile Company, a corporation, which claims to have attached the property in an action by it against Buffington and while Buffington was still the owner and in possession of the property, and to have purchased the same at sheriff’s sale upon execution. Upon the trial of the cause the plaintiff offered evidence tending to show the circumstances under which he purchased the property, and what he did with reference to it. At the conclusion of his evidence the eourt granted a nonsuit. The appeal is from the judgment. The bill of exceptions presents all the evidence received and that offered and rejected.
1. Buffington, a witness for plaintiff, was asked whether at any time after he gave the bill of sale to plaintiff he had been up to the property or exercised any acts of ownership over it.
2. Plaintiff offered to prove that the bill of sale which he received from Buffington for this property was filed with the county clerk and recorder of Valley county, and that on or about July 30, 1910, he made application to an agent of an insurance company for insurance upon the property in his own name. Each of these offers was properly refused. If plaintiff had been permitted to prove the facts, he would' not have been any better off. They would not have constituted, nor would they have assisted in constituting, the acts performed by plaintiff and Buffington a delivery of the possession of the property in controversy. At best they would have reflected only
3. Is the evidence sufficient to make out a prima facie case in favor of plaintiff? The controversy rages around the application of the rule of law stated in section 6128, above, which, so far as applicable to this case, reads as follows: ‘ ‘ Every transfer of personal property * * * is conclusively presumed, if
It is conceded that Buffington was the owner and in possession of the property until about the last of July, 1910; that he was indebted to the defendant company at that time and for several months thereafter; that defendant commenced an action against him on August 8, 1910, attached this property on August 11, and purchased it later at sheriff’s sale upon execution in the same action. The only question for determination now is: Was there such a delivery of possession by Buffington to Taylor prior to August 11, 1910, followed by an actual and continued change of possession of the property, as to satisfy the demands of section 6128 above? Much of the record is given up to evidence which is wholly irrelevant to the issue made by the pleadings. There was not any attack upon the sale from Buffington to Taylor for fraud in fact. Assuming, as we do, that there was a sale as claimed by plaintiff, still evidence of the consideration
Does this evidence prove or tend to prove an immediate delivery of the property by Buffington to Taylor, and an actual and continued change of possession within the meaning of section 6128? We think not. Assuming for the purposes of this appeal — as counsel for appellant do- — that the character of this property is such that manual delivery was not practicable, counsel then insist that a symbolical delivery of such property may satisfy the demands of the statute, and Western Mining Supply Co. v. Quinn, 40 Mont. 156, 135 Am. St. Rep. 612, 20 Ann. Cas. 173, 28 L. R. A. (n. s.) 214, 105 Pac. 732, is cited to support this contention. In that ease we held that the delivery by the seller to the buyer of the keys to a warehouse in which was locked heavy mining machinery, lumber, etc., was a sufficient delivery of possession of the property to satisfy the statute above. We do not know of any case where the rule of the statute has been given a more liberal construction; but the evidence in this instance falls far short of establishing any delivery at all, manual or symbolical. It does not appear that the cookhouse in which most of this property was stored was in fact locked, and, if it was — which is a mere surmise — there is not any evidence that the keys were delivered to Taylor, the purchaser. All that can be said of the evidence is that it shows that Buffington left orders with the men at the plant to lock up the machinery in the cookhouse and that thereafter he delivered the keys to Burton or McKinney to deliver to the Saco Mercantile Company. But there is not an intimation in the record that the men obeyed Buffington’s orders, or that the cookhouse was actually locked, or that the keys were ever delivered to the Mercantile Company or to Taylor, the purchaser. Taylor was a witness in his own
In Dodge v. Jones, 7 Mont. 121, 14 Pac. 707, the horses in controversy, with others, were gathered from the public range, the purchased ones separated from the others, branded with a distinguishing brand, and then returned to the range. This court held that there was a sufficient delivery and change of possession to meet the requirements of the statute. Upon a similar state of facts a like conclusion was reached in Cady v. Zimmerman, 20 Mont. 225, 50 Pac. 553. But in Dodge v. Jones this court quoted with approval from Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500, the following: “The 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 owmership by the vendee. It must be such as to give evidence to the world of the claims of the new owner. ITe 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.” This doctrine was repeated in Morris v. McLaughlin, above, decided after Cady v. Zimmerman, and in that ease the further language of the California court in construing a statute like our 6128 was adopted: “The word ‘actual’ was designed to exclude the idea of a mere formal change of possession, and the word ‘continued,’ to exclude the idea of a mere temporary change.”
The motives which prompted Buffington and Taylor in their transaction are not the subject of inquiry here. We may assume that they acted in perfect good faith, intending to accomplish a legitimate object in a lawful manner; but, because they failed to make an immediate delivery of the property and to
The judgment is affirmed.
Affirmed.