93

sion of the vendee, or upon his premises, no formal delivery is necessary to pass the property. When the purchaser of personal property takes possession of the real estate on which it is situated this carries with it the possession of the personal property, and neither a temporary or permanent removal of the property is required. But the securing of a deed or acquiring of title to the land is not sufficient to establish possession of personal property thereon in the grantee, where the grantor remains in possession and control of the land," unless he is in possession and control as a tenant or agent of the purchaser.95 Where a purchaser, however, buys a farm with the personal property on it and puts his deed on record and enters upon the premises and assumes full control of the property, this is sufficient where neither of the parties reside upon the premises.

96

§ 24. Delivery to common carrier.-A delivery of goods to a common carrier on board the cars at the seller's place of residence, upon a previous order of the purchaser, and the consignment of the cars to the purchaser at his place of residence, is a complete delivery to and invests the title in the purchaser, as against attaching creditors of the seller."

§ 25. Vendee already in possession.-Where the goods or chattels described in a bill of sale are at the time it is made and delivered already in the possession and under the exclusive control of the vendee or his agent, the sale is complete, and a

348; Solomons v. Chesley, 58 N. H.

238.

93. Gilligan v. Lord, 51 Conn. 562; Elmer v. Welch, 47 Conn. 56; Nichols v. Patten, 18 Me. 231, 35 Am. Dec. 713; Weeks v. Prescott, 53 Vt. 57; Burrows v. Stebbins, 26 Vt. 659; Stephenson v. Clark, 20 Vt. 624.

94. Dorman v. Soto (Cal. 1894), 36 Pac. 588; Weeks v. Prescott, 53 Vt. 57; Flanagan v. Wood, 33 Vt.

332; Stiles v. Shumway, 16 Vt. 435.

95. Banning v. Marleau, 101 Cal. 238, 35 Pac. 772; Bernal v. Hovious, 17 Cal. 541, 79 Am. Dec. 147; Visher v. Webster, 13 Cal. 58.

96. Wilson v. Hooper, 12 Vt. 653, 36 Am. Dec. 366.

97. Hope Lumber Co. v. Foster, etc., Hardware Co., 53 Ark. 196, 13 S. W. 731; Everett v. Taylor, 14 Utah, 243, 47 Pac. 75.

99

formal delivery is not necessary to make the sale good as against the creditors of the vendor.98 The rule is the same where a partner or a tenant in common of personalty sells his interest to his partner or cotenant already in possession. On a sale of partnership goods by a partner to his copartner, a delivery of the property is necessary to the validity of the sale; but such delivery consists rather in the surrender of the possession and control of the goods, than in the actual tradition of them by the seller to the purchaser.1

§ 26. Separation or marking of property purchased.-The rule that an absolute sale of chattels capable of removal is fraudulent as to the seller's creditors if the same remain in his possession applies where the property sold was separated from · the vendor's stock, but remained under his control, and even where it was separated and marked with the buyer's brand.3 But when the vendee takes possession of property not readily removable, and, without removing it, causes it to be marked or cards placed thereon with his name, or notice of ownership, thereon, this is a sufficient change of possession to make the sale valid as against creditors. Some actual possession, however,

98. Lake v. Morris, 30 Conn. 201; Nichols v. Patten, 18 Me. 231, 35 Am. Dec. 713; Martin v. Adams, 104 Mass. 262; Warden v. Marshall, 99 Mass. 305; Macomber v. Parker, 30 Mass. 175; Edwards v. Edwards, 54 Mich. 347, 19 N. W. 164. See also Banning v. Marleau, 101 Cal. 238, 35 Pac. 772.

99. Cushing v. Breed, 96 Mass. 376, 92 Am. Dec. 777; Macomber v. Parker, 30 Mass. 175; Kittridge v. Sumner, 23 Mass. 50; Beaumont v. Crane, 14 Mass. 400; Yank v. Bordeaux, 23 Mont. 205, 58 Pac. 42, 75 Am. St. Rep. 522.

1. Shurtleff v. Willard, 36 Mass. 202.

2. Windmueller v. Van Horne, 44 Ill. App. 143; Harts v. Jones, 21 Ill. App. 150; Frieberg v. Sanger (Tex.), 12 S. W. 1136; Moss v. Sanger, 75 Tex. 321, 12 S. W. 616.

3. Vance v. Boynton, 8 Cal. 554; Burchinell v. Weinberger, 4 Colo. App. 6, 34 Pac. 911; Stewart v. Nelson, 79 Mo. 522; Dougherty v. Haggerty, 96 Pa. St. 515; Eagle v. Eichelberger, 6 Watts (Pa.), 29.

4. Byxbee v. Dewey (Cal. 1896), 47 Pac. 52; Waldie v. Dole, 29 Cal. 555; Hawkins v. K. C. Hydraulic Press Brick Co., 63 Mo. App. 64; Tognini v. Kyle, 17 Nev. 209, 30 Pac. 829, 45 Am. Rep. 442; Ayers v. McCandless, 147 Pa. St. 49, 23 Atl. 344,

5

other than stenciling the vendee's name on the side of railroad cars must be proved to make a valid sale against creditors, and merely putting a red dot on certain ties by the vendee is not a taking of possession sufficient against the vendor's creditors. Where cattle purchased while running at large were separated from the other cattle of the seller at the time of the sale, but were afterwards allowed to run with them as before, there was not such a change of possession as to constitute a valid sale;' and so where the cattle were never separated from other cattle. But it has been held that where certain horses in a corral were sold to a bona fide purchaser for value, and were given a distinguishing mark at the time of the sale, and then immediately turned on the vendor's range in the actual possession of no one, that there was a sufficient change of possession, though only constructive.' Whether the acts of separation and marking or identification which might constitute a delivery did or did not amount to a delivery may be a question for the jury.'

10

27. Time of delivery-Must be within reasonable time.A delivery of property must be made at the time of the sale, or within a reasonable time thereafter, or with such convenient promptness as the transaction warrants. Delivery within a reasonable time is an immediate change of possession within the meaning of the statute. No definite rule is laid down as to what is a reasonable time, but it must be determined by the circumstances of the given case, such as the nature, condition, and situation of the property at the time of the transaction." Where

20 Wash. L. Rep. 560; Haynes v. Hunsicker, 26 Pa. St. 58.

5. Rafferty V. McKennan 1885), 1 Atl. 546.

(Pa.

6. Stewart v. Nelson, 79 Mo. 522. 7. Sutton v. Ballou, 46 Iowa, 517. 8. Crane v. Timberlake, 81 Mo. 431.

9. Dodge v. Jones, 7 Mont. 121, 14 Pac. 707.

10. Wylie v. Kelly, 41 Barb. (N. Y.) 594.

11. N. Y.-Drury v. Wilson, 4 App. Div. 232, 38 N. Y. Supp. 538; Kellogg v. Wilkie, 23 How. Pr. 233. U. S.-Kleinschmidt v. McAndrews, 117 U. S. 282, 6 Sup. Ct. 761, 29 L. Ed. 905.

Ala. Bank of Alabama v. McDade, 4 Port. 252.

there is evidence as to the circumstances surrounding the transfer, the question whether or not there was an immediate delivery is one for the jury.12

§ 28. Change of possession before levy.-The rule is generally maintained that upon a bona fide sale of personalty, if an absolute bill of sale, fair in itself, be not accompanied and followed by immediate possession, but possession is taken by the vendee before the property is seized upon execution or attachment, or the adverse rights of any creditor of the vendor attaches, or a specific lien upon it is otherwise acquired, the change of possession is sufficient and the sale is good as against the vendor's creditors.13

Cal.-Feeley v. Boyd, 143 Cal. 282, 76 Pac. 1029, 60 L. R. A. 943; Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95; Porter v. Bucher, 98 Cal. 454, 33 Pac. 335; Hogan v. Cowell, 73 Cal. 211, 14 Pac. 780.

Colo.-Bailey v. Johnson, 9 Colo. 365, 12 Pac. 209, one day.

Conn.-Gilbert v. Decker, 53 Conn. 401, 4 Atl. 685; Seymour v. O'Keefe, 44 Conn. 128, twelve days held an unreasonable time; Ingraham V. Wheeler, 6 Conn. 277.

Del.-Miller v. Lacey, 7 Houst. 8, 30 Atl. 640; Sanders v. Clark, 6 Houst. 462.

Ill.-Cruikshanks v. Cogswell, 26 Ill. 366; Hardin v. Sisson, 36 Ill. App. 383.

La.-Russell v. Keefe, 28 La. Ann.

928.

Mo.-McIntosh v. Smiley, 107 Mo. 377, 17 S. W. 979; Bishop v. O'Connell, 56 Mo. 158; Bass v. Walsh, 39 Mo. 192; Cunningham v. Ashbrook, 20 Mo. 553; Dillin v. Kincaid, 70 Mo. App. 670; Kendall Boot, etc., Co. v. Bain, 46 Mo. App. 581; State v. Hellman, 20 Mo. App. 304; Kane v. Stern, 13 Mo. App. 581.

Mont.-O'Gara v. Lowry, 5 Mont. 427, 5 Pac. 583, one day's delay does not necessarily render the sale void.

Pa.-McMarlan v. English, 74 Pa. St. 296; Chase v. Garrett, 1 Pa. Cas. 16, 1 Atl. 912; Wilt v. Franklin, 1 Bin. 502, 2 Am. Dec. 474.

Tex.-Osborn v. Koenigheim, 57 Tex. 91.

Utah.-White v. Pease, 15 Utah, 170, 49 Pac. 416.

12. Kellogg v. Wilkie, 23 How. Pr. (N. Y.) 233; Porter v. Bucher, 98 Cal. 454, 33 Pac. 335; Bailey v. Johnson, 9 Colo. 365, 12 Pac. 209; State v. Hellman, 20 Mo. App. 304.

13. Conn.-Gilbert v. Decker, 53 Conn. 401, 4 Atl. 685.

Ida.-Cornwall v. Mix, 3 Ida. 687, 34 Pac. 893.

Iowa.-Blake v. Graves, 18 Iowa,

But in some jurisdictions it is held that a sale of personal property, unaccompanied by immediate delivery, is void as to creditors, under the statute requiring immedate delivery and a continued change of possession to validate such a sale, though the property is delivered before levy of the creditor's execution thereon.14

§ 29. Assignment in trust for creditors.-Retention of the possession of property by an assignor for the benefit of creditors consistent with the terms and object of the deed of assignment is not fraudulent as to creditors. The assignee has a reasonable time to reduce the property to possession, and the fact of the retention by the assignor of the assigned property does not necessarily show fraud and render the assignment void, but, with other conduct of the parties after the assignment, is for the consideration of the jury on the question of fraud and is susceptible of explanation. The title to an estate assigned for creditors passes to the assignee upon the execution, delivery, and recording of the assignment, with the right in him to reduce the property to possession within a reasonable time; and no lien is acquired superior to the assignee's title by levies, made under execution thereafter coming into the sheriff's hands, although the assignee

15

Mo. App. 235; Markey v. Umstattd, Contra-Franklin 53 Mo. App. 20.

v. Gumersell, 9 Mo. App. 84, 11 Mo.
App. 306.

Nev.-Clute v. Steele, 6 Nev. 335.
Vt.-Kendall v. Samson, 12 Vt.

515.

Va.-Carr's Adm'rs v. Glasscock's Adm'r, 3 Gratt. 343; McKinley v. Ensell, 2 Gratt. 333; Snyder v. Gee, 4 Leigh, 535.

14. Edwards v. Sonoma Val. Bank, 59 Cal. 148; Watson v. Rodgers, 53 Cal. 401; Chenery v. Palmer, 6 Cal. 119, 65 Am. Dec. 493; Autrey v.

Bowen, 7 Colo. App. 408, 29 N. E. 1036.

15. Conn.-Ingraham v. Wheeler, 6 Conn. 277.

Ky.-Christopher v. Covington, 2 B. Mon. 357; Vernon v. Morton, 8 Dana, 247.

Mich.-Stamp v. Case, 41 Mich. 267, 2 N. W. 27, 32 Am. Rep. 156.

Mo.-Goodwin v. Kerr, 80 Mo. 276. Ohio.-Johnson v. Sharp, 31 Ohio St. 611, 27 Am. Rep. 529.

Pa.-Mitchell v. Willock, 2 Watts & S. 253; Wilt v. Franklin, 1 Binn. 502, 2 Am. Dec. 474.