29 Cal. 466 | Cal. | 1866
The plaintiff'brought his action to recover damages against the defendant for seizing and taking a kiln of bricks alleged to be the property of the plaintiff, and of the value of five thousand six hundred dollars. The defendant justified his acts on the ground that the property belonged to Joseph O’Neill, and that the defendant as Sheriff of the City and County of Sacramento seized and took the same by virtue of certain writs of attachment issued in actions brought by divers creditors of O’Neill, and that said property was so seized and taken as the property of O’Neill, and was in fact his property at that time and liable to be levied on under and by virtue of said writs of attachment and to be held thereunder to satisfy any judgments which might be recovered in the actions in which such writs of attachments were issued.
The plaintiff claimed to own the kiln of bricks in question as the purchaser thereof from O’Neill; and the defendant as Sheriff, representing the attaching creditors, controverted the plaintiff’s right to the same on the ground that the sale thereof by O’Neill to him was, as to the creditors named, void by the Statute of Frauds. The cause was tried by the Court without a jury. Judgment was rendered for the plaintiff. The defendant moved for a new trial which was denied.
The Court found that on the 22d of October, 1861, O’Neill was the owner of a kiln of green or unburned bricks, which was then nearly completed, and that on that day, being indebted to the plaintiff in the sum of three thousand two hundred dollars, the former executed and delivered to the latter, as security therefor, a bill of sale of said kiln of bricks, and in the same instrument further agreed, in consideration of said indebtedness, to proceed as soon as practicable to burn
The counsel for the respective parties are not entirely agreed as to the character of the transaction between O’Neill and the plaintiff—that is, whether it was a sale or a mortgage. It was the one or the other, and it matters not which, because, in either event, the principle upon which the case depends is the same. The property in question was of a character that could not be transferred from the vendor to the vendee, or from the mortgagor to the mortgagee, by a manual delivery, and as between the parties the transfer attempted to be made may be considered as sufficient to pass the interest intended to be transferred ; but as to the creditors of O’Neill the transaction must be determined by reference to the provisions of the Act concerning fraudulent conveyances and contracts, the fifteenth section of which reads as follows: “ Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of
If the instrument executed on the twenty-second of October, and the transactions which transpired then and subsequently on the eleventh of November, be considered a sale of the kiln of bricks, then, in order to protect the property from the creditors of the vendor, the vendee was bound to take possession of it and thence continue in its actual possession. The words “ actual possession ” contained in the statute are used in contradistinction to constructive possession, which is an incident of and dependent on right and title. If the sjime instrument and transaction be considered a mortgage, then to make the mortgage valid as to any other persons than the parties thereto, the property should have been delivered to and retained by the mortgagee. The kind of possession which it was necessary for the mortgagee to have of the mortgaged property to place it beyond the reach of the creditors of the mortgagor was an actual possession; otherwise the seventeenth section of the Act would be without any efficient meaning, and would wholly fail to accomplish the useful purpose for which it was designed. What constitutes an actual and continued change of possession is well stated in Stevens v. Irwin, 15 Cal. 506; and in Godchaux v. Mulford, 26 Cal. 323. What acts will amount to an immediate delivery and an actual and continued change of possession of personal property of a cumbrous and ponderous nature—such as a kiln of bricks— must depend in a great degree upon the circumstances of the particular case, as was said in Lay v. Neville, 25 Cal. 552; but care should be taken in such cases to keep in view the object of the statute, and to-exact nothing less than a substan
The judgment is therefore reversed, and the Court below directed to enter judgment for the defendant.
Mr. Chief Justice Sanderson expressed no opinion.
We have examined the plaintiff’s petition for a rehearing and the authorities to which reference is therein made. Much is said in the argument which accompanies the petition in relation to a constructive delivery and possession of personal property of a cumbrous and ponderous nature. It was quite unnecessary to make an issue with the Court upon the language used in the opinion delivered, as to the necessity of an immediate delivery and an actual and continued change of possession of the property in controversy, in order to satisfy the requirements of the Statute of Frauds. The distinction between an actual and a constructive possession was therein referred to and explained. In the sense of the terms “ immediate delivery” and “actual and continued change of possession,” employed in the statute, a delivery and possession of cumbrous articles of personal property may be fully consummated. The mode and manner are indicated in the opinion and by the cases of Stevens v. Irwin and Lay v. Neville, therein referred to. The plaintiff’s counsel is quite mistaken in sup
The rule which our statute prescribes admits of no excuse dispensing with an actual and continued change of possession of the property sold, assigned or mortgaged, in order to place it beyond the reach of the creditors named therein, and when consulting the decisions of other Courts than our own it should be remembered that we have a statute more definite and exacting than those under which the decisions of such other Courts were made. The statute of 18th Elizabeth contained no provisions similar to the fifteenth and seventeenth sections of our Statute of Frauds, but it did contain a provision, of which the twentieth section of our statute is in substance a transcript. Under that Act the Courts held that the continuance of the vendor in possession after sale, was presumptive evidence that the sale was designed to hinder, delay and defraud the creditors of the vendor; In Edwards v. Harben, 2 T. R. 587, it was the unanimous opinion of the Court that, unless possession accompanies and follows the sale, it is fraudulent and void. In that case, the Court held that where there
The Courts which have attempted to follow the doctrine of Edwards v. Barben have necessarily been much embarrassed by the many exceptions to the rule there laid down. The Statute of 13th Elizabeth was re-enacted in New York in 1787. In Sturtevant v. Ballard, 9 John. 337, Mr. Chief Justice Kent, in an effort to introduce the rule declared in Edwards v. Harben and Hamilton v. Russell, into the jurisprudence of his State, found it encumbered with eight exceptions, and by subsequent decisions of the Courts of England and of the several States of America the exceptions became multiplied until in the year 1824, Judge Cowen, then Reporter, in an elaborate note to the case of Bissell v. Hopkins, 3 Cow. 189, particularly enumerated and considered twenty-four. Upon which, as if in despair of ascertaining the status of the law on this subject so fruitful of controversies, he said: “ When we look at the nature of the twenty-four different exceptions to the rule in Edwards v. Harben, which are above enumerated, it is time to ask what does the rule amount to ? What is it worth? And does its preservation deserve a struggle? Some of the exceptions are almost as broad as the rule itself. The nature of the instrument of sale, the kind of sale, whether directly between the parties, or on execution, or distress for rent, necessity, convenience, customs of doing business, the nature, quantity, relative value, distance, and place of the articles sold, the consideration, the relation of the parties, honesty, fairness, humanity, friendship, special circumstances, special reasons, etc., etc., have in their turn been called in by the different cases to fritter down the rule. Sometimes the attempt to apply it strikes the Judges with such evident absurdity that they no longer proceed by way of exception. Instead of attempting to untie, they cut the knot at once by denying the existence of the rule.” So the law on this subject remained
The rehearing must be denied.
Mr. Justice Sanderson expressed no opinion.