Even though a technical judgment by default had been improper under the circumstances, it was not error to render some sort of judgment for plaintiff. The defendants knew of the pendency of the action, and one of them was present, and offered no defense, and made no request for time in which to do so. The principal question involved in this case is as to the effect of the failure to comply with section 7908, Comp. Laws 1909, above. It is contended that the failure to comply with the terms of the statute was only prima facie evidence of fraud and did not raise a conclusive presumption, and that the court having found as a matter of fact that, notwithstanding the failure to comply with the statute, the sale was not in fact fraudulent, the attachment should have been dissolved. It was held by this court in the case of Ellett-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892, following Williams v. Fourth Nat. Bank, 15 Okla. 447, 82 P. 496, 2 L. R. A. (N. S.) 334, 6 Ann. Cas. 970, that the Act of 1903, regulating the sales of stocks of merchandise in bulk, did not render a sale made in violation of that statute conclusively fraudulent and void, but that the failure to comply with such statute only created a rebuttable presumption that such a sale was void. But the sale in question here was governed by section 7908, quoted above.

Defendant obtained a judgment in the justice of the peace court of Morris, Okmulgee county, Okla., against Frank Hilliard and proceeded to attempt to levy upon a stock of goods in Morris in a location known as the Farmers Trading Company. Plaintiff enjoined the execution on the ground that he was the owner of such property and the trial court sustained such injunction. We are of the opinion that the cause must be reversed, with directions to set aside the judgment for the plaintiff and enter judgment for the defendant on the following authorities: Second National Bank v. Gilbert, 174 Ill. 485, 51 N.E. 584, 66 Am. St. Rep. 306; Sharon v. Shaw, 2 Nev. 289, 90 Am. Dec. 546; Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; Williamson-Halsell-Frazier Co. v. King, 58 Okla. 120, 158 P. 1142. In Williamson-Halsell-Frazier Co. v. King, supra, the court announced the rule that the transfer of personal property must be accompanied by an actual and continued change of possession, open, notorious, and unequivocal. It further stated that notice or knowledge of the transfer of the property will not prevent a creditor from exercising his right either by attachment or execution.

"This section of the statute has been construed by this court and by the Supreme Court of Oklahoma Territory in a number of cases, and it has been uniformly held that it contemplates an actual and continued change of possession which must be open and notorious, and such in its character as to apprise those who are accustomed to deal with the party that the property has changed hands; and it is further held that the statute admits of no explanation excusing the delivery and change of possession, and that by the passage thereof it was the intention of the Legislature to exclude all inquiry as to the consideration for the sale or the motives prompting the same, and, where there was no such change of possession, the transfer is fraudulent and the courts have no right to avoid its force and effect. Swartzburg v. Dickerson, 12 Okla. 566, 73 P. 282; Walters v. Ratliff, 10 Okla. 262, 61 P. 1070; Love v. Hill, 21 Okla. 347, 96 P. 623; Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; McCord-Collins Mercantile Co. v. Dodson, 32 Okla. 561, 121 P. 1085."

In Oklahoma, in 1903, the law provided that: "A sale of any portion of any stock of merchandise * * * will be presumed to be fraudulent and void as against the creditors of the seller unless" etc. And in Williams v. Fourth National Bank, 15 Okla. 447, 82 P. 496, (2 L.R.A. (N.S.) 344, 6 Ann. Cas. 970) and in Ellett-Kendall Shoe Company v. Ross, 28 Okla. 697, 115 P. 892, it was decided that this "statutory language did not render a sale made in violation of that statute conclusively fraudulent and void, but that the failure to comply with such statute only created a rebuttable presumption that such a sale was void," i.e. it merely established a rule of evidence. Thereafter the law was altered (Laws of Oklahoma 1907-8, page 557), so that it read: "The transfer of any portion of a stock of goods, wares and merchandise, otherwise than in the ordinary course of trade * * * shall be presumed to be fraudulent and void as against the creditors of such transferrer and such presumption may be rebutted only by a proposed transferee showing that" he complied with the several requirements of the law.

Such a change as to apprise the community, or those who are accustomed to deal with the property, that the property has changed hands and the title has passed from the vendor to the vendee. See Sankey v. Suggs, 111 Okla. 293, 239 S.W. 149; Ellett-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; Cochran Grocery Co. v. Harris, 28 Okla. 715, 116 P. 185; Swartzburg v. Dickerson, 12 Okla. 566, 73 P. 282; also Israel v. Day, 41 Colo. 52, 92 P. 698. In the case of Sankey v. Suggs, supra, it is said: "Where the facts are undisputed, it is for the court to determine as a question of law whether such facts show such an actual and continued change of possession as will render a transfer of personal property valid as against creditors of the seller."

"By 'open and notorious possession' I mean public change of possession, which is to continue and to be manifested continually by the outward and visible signs, such as render it evident that the possession of the judgment debtor has ceased." To the same effect is the case of Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892. In the case of Israel v. Day, 92 P. 698, the Supreme Court of Colorado said:

The rule adhered to by this court in such circumstances is that, "When an instruction is given which fairly contains the substance of an instruction refused, the refusal of such instruction does not constitute reversible error." Rock Island Coal Min. Co. v. Toleikis, 67 Okla. 299 171 P. 17; Citizens' Bank of Headrick v. Citizens' State Bank of Altus, 75 Okla. 225, 182 P. 657; Mangold Glandt Bank v. Utterback, 70 Oklahoma, 174 P. 542; Oil Fields Santa Fe Ry. Co. v. Treese Cotton Co., 78 Okla. 25, 187 P. 201; Kelly v. Hamilton, 78 Okla. 179, 189 P. 535; Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; Eisminger v. Beman, 32 Okla. 818, 124 P. 104. Defendant's propositions 4 and 5, discussed in their brief, go to the question of the court's action in sustaining objections to certain testimony.

In these circumstances the trial court rendered the proper judgment. Williamson-Halsell-Fraser Co. v. King, 58 Okla. 120, 158 P. 1142; Swartsburg v. Dickerson, 12 Okla. 566 73 P. 281; Walters v. Ratliff, 10 Okla. 262, 61 P. 1070; Love v. Hill, 21 Okla. 347, 96 P. 623: Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; McCord-Collins Merc. Co. v. Dodson, 32 Okla. 561, 121 P. 1085. This being the state of the record on the attachment branch of the case, we think the testimony tends strongly to support the judgment of the court sustaining the attachment, and that the attachment proceeding was properly brought.

The contention that the court erred in refusing to give instruction No. 5 requested by the defendant is without merit, for the reason that instruction No. 6 given by the court contains substantially every principle of law contained in instruction No. 5 refused. It is well settled that, when an instruction is given which fairly contains the substance of an instruction refused, the refusal of such instruction does not constitute reversible error. Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; Eisminger v. Beman, 32 Okla. 818, 124 P. 289; Enid City Ry. Co. v. Reynolds, 34 Okla. 405, 126 P. 193. Counsel's contention as to the refusal of the court to give instructions Nos. 2, 3, and 4 are discussed together. Each of these instructions, counsel say, sought to have submitted to the jury the question of assumption of risk, and were drawn to present to the jury defendant's theory of the case.

This section of the statute has been construed by this court and by the Supreme Court of Oklahoma Territory in a number of cases, and it has been uniformly held that it contemplates an actual and continued change of possession which must be open and notorious, and such in its character as to apprise those who are accustomed to deal with the party that the property has changed hands; and it is further held that the statute admits of no explanation excusing the delivery and change of possession, and that by the passage thereof it was the intention of the Legislature to exclude all inquiry as to the consideration for the sale or the motives prompting the same, and, where there is no such change of possession, the transfer is fraudulent and the courts have no right to avoid its force and effect. Swartzburg v. Dickerson, 12 Okla. 566, 73 P. 282; Walters v. Ratliff, 10 Okla. 262, 61 P. 1070; Love v. Hill, 21 Okla. 347, 96 P. 623; Ellet-Kendall Shoe Co. v. Ross, 28 Okla. 697, 115 P. 892; McCord-Collins Mercantile Co. v. Dodson, 32 Okla. 561, 121 P. 1085. Plaintiff admits that at the time of the sale it was agreed that Burke should remain in possession of the fixtures until the first of the succeeding month, but he claims that as soon as Burke received the money and before the levy of the attachment he absconded and left his son in charge, and that the son notified the defendant the fixtures had been sold and paid for by King, and that King was the owner and that there had been an actual change of possession.