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same safety he may a stranger." And many cases apply a still more liberal rule.2

chinery and appliances located in leased rooms were sold in good faith, and vendor locked the doors and surrendered the keys to the vendee. Held, a sufficient delivery. Kellogg Newspaper Co. v. Peterson (1896), 162 Ill. 158, 44 N. E. R. 411, affirming 59 Ill. App. 89. H. bought from P. and paid valuable consideration for certain brick lying on the street. He posted on the pile several written or

1 In Dewey v. Thrall, 13 Vt. 284. To same effect: Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500; Gould v. Huntley, 73 Cal. 399, 15 Pac. R. 24; Deere v. Needles, 65 Iowa, 101, 21 N. W. R. 203; French v. Hall, 9 N. H. 137, 32 Am. Dec. 341; Ziegler v. Handrick, 106 Pa. St. 87.

It is not always necessary that the "public" shall know about the sale nor that the change of possession shall continue until the whole community has become apprised of the fact, provided there has in fact been an actual and open change of possession. Thus, on the sale of a horse, buggy and harness, it is not necessary that the whole community shall be made aware of it in order to make it valid. Deere v. Needles, 65 Iowa, 101, 21 N. W. R. 203.

In Benjamin v. Madden (1896), 94 Va. 66, 26 S. E. R. 392, there was an actual and bona fide sale, and the vendee took possession, but the vendor and his former clerk were retained as salesmen, the vendor's name was continued on the windowshades (this being the only sign), and the vendor's license was not transferred to the vendee. The bill of sale, however, was recorded and the

printed notices advising the public that he had bought the brick, that they were his property and were for sale, and gave in the notices his address and his telephone number. The notices remained posted two or three months, and never at any time after the sale did P. claim or exercise any control over them. At the time of the execution, however, four months after the sale, the notices had disap

vendee advertised for a week in the local papers that she had bought the goods and would continue the business. Held, a sufficient change of possession.

2 Thus, in Shaul v. Harrington (1891), 54 Ark. 305, 15 S. W. R. 835, it is said "that a legal delivery, and not a visible change of possession, is all that is required to protect the vendee's title." "Constructive delivery being enough to satisfy the law, it is an easy transition to constitute the vendor a bailee for the vendee, and so work out a delivery. And it is held that such a delivery is sufficient against creditors. Whenever there is a completed contract of sale, and an agreement by the vendor to hold as bailee for the vendee in lieu of an actual delivery, the sale is complete against creditors if it is not otherwise fraudulent." Citing Little Rock & Fort Smith Ry. Co. v. Page, 35 Ark. 304; Stinson v. Clark, 6 Allen (Mass.), 340; Ingalls v. Herrick, 108 Mass. 351; Thorndike v. Bath, 114 Mass. 116; Barrett v. Goddard, 3 Mason, 107; Webster v. Anderson, 42 Mich. 554; Norwegian Plow Co. v. Hanthorn, 71 Wis. 529, 37 N. W. R. 825; Pregnall v. Miller, 21 S. C. 385.

§ 966.

"Exclusive.”—The possession of the buyer

must, finally, it is said, be an exclusive one - that is, one not

peared. Held, a sufficient change of possession. Hawkins v. Kansas City Hydraulic, etc. Brick Co. (1895), 63 Mo. App. 64, 1 Mo. App. R. 609. D. purchased and took a bill of sale for wood piled upon the land of a stranger, X., and subject to a lien for cutting. The wood was measured and form ally delivered, but was not moved. Within three and one-half hours thereafter M., the seller, paid off the lien of the choppers out of money received from D. Held, a sufficient delivery and change of possession. Dubois v. Spinks (1896), 114 Cal. 289, 46 Pac. R. 95. W. was indebted to his barkeeper, K., and proposed that if K. would pay him the difference between the debt and the value of the stock in the saloon he would sell such stock to him. K. had left the employ of W. and another barkeeper had been employed. The property was delivered to K., the new barkeeper discharged, and the place locked up by K., who had no license, and who kept the key and was thereafter the only person who entered the place. Held, that there was an immediate delivery followed by an actual and continued change of possession. Howe v. Johnson (1897), 117 Cal. 37, 48 Pac. R. 978. A vendor delivered to plaintiffs enough wool at nine cents a pound to pay a debt of $505, which he owed them, and they moved it a considerable distance to the opposite end of the shed and stored it; afterwards the vendor, upon an agreement with the plaintiffs, employed a man who owed him to haul the wool to the station to be shipped in the names of the plaintiffs. Held, prima facie evi

dence of sale, delivery and continuous possession. Everett v. Taylor (1896), 14 Utah, 242, 47 Pac. R. 75. L. was engaged in other business in S., and on the advice of a friend who was acquainted with the business of the store in F. he bought the stock of goods therein, went to F. for a day, took possession, changed signs, and hired one of the vendor's clerks and left him in charge, while L. himself returned to S. The vendor gave up possession and had nothing more to do with the business for two weeks, at the end of which period L. hired him and put him in charge of the business. Held, that there was a substantial and unequivocal change of possession following the sale. Levy v. Scott (1896), 115 Cal. 39, 46 Pac. R. 892.

A stone-cutter transferred his stock in trade to his sister in payment of two of his notes held by his sister. The sister continued the business, notified dealers of the transfer and of her cole interest in the business, paid its running expenses, appointed her brother as manager and paid him a salary. Held, a sufficient delivery and change of possession. Kelly v. Mesier (1897), 46 N. Y. Supp. 61, 18 App. Div. 329. One partner had had nothing to do with the business of the firm for a month, and the other transferred their stock of goods to a creditor at a good valuation in payment of a firm debt. After he had shown the new delivery boy the delivery route, he left the store, leaving it in charge of the purchaser's agent, who had been in the employ of the firm as book-keeper for the month previous. Evidence held sufficient to

concurrent with the possession of the seller. But this rule also, like the others, adapts itself to the circumstances of the

show an actual and continued change of possession. Stratton v. Burr (Cal., 1898), 54 Pac. R. 735. A firm composed of father and son sold to the wife and mother jewelry, which was delivered to her and kept by her for three months in her house, where she resided with her husband

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"The law undoubtedly is," said Sharswood, J. (in McKibben v. Martin, 64 Pa. St. 352, 3 Am. R. 588), "that not only must possession be taken by the vendee, but that possession must be exclusive of the vendor. A concurrent possession will not do. There cannot in such case,' said Mr. Justice Duncan, 'be a concurrent possession; it must be exclusive, or would by the policy of the law be deemed colorable.' Clow v. Woods, 5 S. & R. 275, 9 Am. Dec. 346. And again in Babb v. Clemson, 10 S. & R. 428, 13 Am. Dec. 684: 'There cannot be a concurrent possession in the assignor and assignee; it must be exclusive or it is deemed colorable and fraudulent. To defeat the execution there must have been a bona fide, substantial change of possession. It is a mere mockery to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colorable.' But what is the concurrent possession which will be deemed such as matter of law? Evidently as owner, or accompanied with the ordinary indicia of ownership- such as will lead any person not in the secret to infer that there has been no actual change. The vendor must appear to occupy the same relation to the property as he

and son, except when she intrusted a part of it to them to sell to obtain necessaries for the family; they returned it to her upon failing to find a purchaser. Held, that there was an actual and continued change of possession as against creditors In the same case, the mother, after

did before. In such a case the court must pronounce it fraudulent and colorable per se. We have been referred to three cases only in our books which were determined on this ground. These were all of the character I have stated. Hoffner v. Clark, 5 Whart. 545; Brawn v. Keller, 43 Pa. St. 104, 82 Am. Dec. 554; Steelwagon v. Jeffries, 44 Pa. St. 407. Certainly it may be considered as settled by abundant authority in this court that where there has been a sufficient actual or constructive delivery to the vendee, and he is in possession, the fact that the vendor is employed as a clerk or a servant about the establishment, in a capacity which holds out no indicium of ownership, does not constitute such a concurrent possession as the law condemns. In such cases it is a question for the jury whether the change of possession has been actual or bona fide — not pretended, deceptive and collusive; " citing McVicker v. May, 3 Pa. St. 224, 45 Am. Dec. 637; Forsyth v. Matthews, 14 Pa. St. 100, 53 Am. Dec. 522; Hugus v. Robinson, 24 Pa. St. 9; Dunlap v. Bournonville, 26 Pa. St. 72; Billingsley v. White, 59 Pa. St. 464. Many cases illustrative are cited in the preceding notes.

case. There are many situations in which the seller's physical proximity to the thing sold may continue although his relation of ownership has ceased. Thus, where a father sold goods to his son, who lived with him, it was said that the law did not

keeping the goods three months, delivered them to the plaintiff to be sold upon commission. Held, that the employment of the son by the plaintiff to assist him in his business, under a contract to which the mother was not a party did not indicate that there had been no actual and continued change of possession in the mother as against creditors. Roberts v. Burr (Cal., 1898), 54 Pac. R. 849. The seller's possession of hogs when they were levied on does not show a want of immediate and continued change of possession where such possession was as an agister for hire on leased premises different from those upon which the hogs were ranging at the time of the sale. Henderson v. Hart (1898), 122 Cal. 332, 54 Pac. R. 1110. The vendors were a company of F. The goods were in a branch store in C., distant about one hundred and fifty miles. The bill of sale was made at F., June 18th. to B. & M. The next day B. & M. took possession by telephoning one Mahoney to go over to the sales-room in C. and take possession and act as custodian for B. & M. Mahoney did so, being introduceď to L., the salesman then in charge, by the secretary of the vendor company, who informed L. that the stock had been sold to B. & M. and that Mahoney was custodian for B. & M. Mahoney remained five or ten minutes looking about, and then went away, returning in the afternoon and remaining for an equal period. Next day Munson returned to C. and was

directed by B. & M. to take charge and act as custodian for them. He went to L., informing L. of his authority from B. & M., of the sale to B. & M., etc., and requested L. to act as salesman under him, to take an immediate inventory, to open a new set of accounts, to make sales for cash only and account daily for receipts, and to secure the lease of the store-room for the new owners, for rent of which Munson would give checks at the proper time. All this was done. Next day, June 21st, Munson gave L. written statement of all this. L. restamped the stationery, making it "Bass & McDonald." Bank accounts were changed to their proper names under the new arrangement. One employee was discharged and others were re-employed in the name of B. & M. The signs on the store, and also the advertising cards in the store-room, were unchanged. Held, a sufficient change of possession as against attaching creditors of the vendor. Bass v. Pease (1898), 79 Ill. App. 308. M. purchased in good faith and for an adequate cash consideration a stock of goods from V., and received a bill of sale therefor. M. took immediate possession, bought and sold goods in his own name, employed a former clerk of V., and remained at the store and in full charge of it for two or three weeks until he was taken sick and had to go home, when he employed V. to take charge during his absence. The old sign of V. remained above the door, and an old

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require the son to turn his father out of doors in order to make his own possession exclusive; and where property had been transferred from a husband to his wife, the court intimated that it was not necessary that she should separate from him in order to be competent to receive it. Such situations and relationships may give opportunity for fraud and require closer scrutiny than others, but they are not conclusive.'

§ 967. Question of sufficiency usually for jury.— Whether the change of possession is sufficient under the circumstances

market-wagon with V.'s name upon
it was used in the business. The old
bill-heads of V. were used, but V.'s
name was obliterated and M.'s sub-
stituted. M. took a new lease of the
store in his own name. During this
condition of affairs the sheriff levied
upon the stock as property of V.
Held, that there was a sufficient
change of possession, and that M.'s
title was good as against attaching
creditors of V. Menken v. Baker
(1899), 40 App. Div. 608, 57 N. Y. Supp.
541. K. in payment of a valid debt
sold and conveyed to his wife his
farm and cattle thereon, and the
deed of conveyance of the land was
duly recorded. Held, that the record
worked a constructive change of the
possession of the farm, and that that
worked a change of possession of the
cattle. Vote v. Karrick (1899), 13
Colo. App. 388, 58 Pac. R. 333. The
seller gave the buyer a bill of sale of
certain cows described as standing
in certain stalls in one of the seller's
barns; the parties went to these
stalls, the cows were pointed out,
the price was paid, and the seller
said, "I deliver you this stock free
from all incumbrance." It was also.
agreed that the seller should keep
the cows for what milk they would
give until a certain date unless the
buyer sooner sold or removed them.

Held, a sufficient delivery as against attaching creditors. Goodwin v. Goodwin (1897), 90 Me. 23, 37 Atl. R. 352. See further Masters v. Teller, 7 Okla. 668, 56 Pac. R. 1067; Gallick v. Bordeaux, 22 Mont. 470, 56 Pac. R. 961.

1 McVicker v. May, 3 Pa. St. 224, 45 Am. Dec. 637.

2 Davis v. Zimmerman, 40 Mich. 24. (But that there must nevertheless be an actual change of possession, see McAfee v. Busby, 69 Iowa, 328, 28 N. W. R. 623; Murphy v. Mulgrew, 102 Cal. 547, 36 Pac. R. 857, 41 Am. St. R. 200; McKee v. Garcelon, 60 Me. 165, 11 Am. R. 200; Wheeler v. Selden, 63 Vt. 429, 21 Atl. R. 615, 25 Am. St. R. 771, and cases therein cited.)

3 Thus it is said in Illinois (Warner v. Carlton, 22 Ill. 415): "There is no doubt that it is a circumstance to be considered on the question of fraud, but undoubtedly may be explained." To same effect: Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500; Morgan v. Miller, 62 Cal. 492; Gilligan v. Lord, 51 Conn. 562; Greenthal v. Lincoln, 68 Conn. 384, 36 Atl. R. 813. It may of course also be found to be merely a sham. Gollober v. Martin, 33 Kan. 252, 6 Pac. R. 267.

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