Opinion
[Syllabus Material] Rhearing Denied 29 Cal. 467 at 474.
Appeal from the District Court, Sixth Judicial District, Sacramento county.
COUNSEL:
The cases of Chenery v. Palmer, 6 Cal. 119, and Hackett v. Manlove, 14 Cal. 9, lay down the doctrine that there is no difference between a sale and a mortgage of personal property, and that in both instances the act of sale or mortgage must be accompanied by an immediate delivery and actual and continued change of possession.
If, then, these authorities are law, the mortgage of plaintiff was absolutely void ab initio, because at the time of its inception no possession was taken under it. Section seventeen of the Statute of Frauds holds that no mortgage of personal property shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee, except in special cases. Now it is contended by the plaintiff that there is a difference between sales and mortgages--that in the formercase the statnte requires an immediate delivery, and that in the latter it does not, and that the delivery may be at any time. We insist there is no such distinction. The statute requires, in the case of mortgages, delivery and retention of possession, and surely that is intended to be immediate. (Stewart v. Scannell, 8 Cal. 80; Vance v. Boynton, Id. 554; Van Pelt v. Littler, 10 Id. 394; Hurlburt v. Bogardus, Id. 518; Richards v. Schroeder, Id. 431; Stevens v. Irwin, 15 Id. 504; Engle v. Marshall, 19 Id. 329.)
H. H. Hartley, for Appellant.
George Cadwalader, for Respondent.
There is no objection made to the ninth finding of the Court, " that all the transactions between plaintiff and Joseph O'Neill were bona fide and free from fraud." The kiln was the only security that plaintiff had for an advance of four thousand four hundred and fifty dollars; and if plaintiff had not intervened on the eleventh of November for the protection of O'Neill's credit, Harris would have attached not only the brick kiln, but so much of the wood as the attaching creditors had then delivered to O'Neill.
This case comes under the seventeenth section of the Statute of Frauds. This section has received the same constructionas the fifteenth of the same act, although there is a marked difference in their verbiage and the transactions to which they severally apply. Thus where a sale is made in good faith there is no reason for the vendor without interest retaining possession of the property sold. Not so, however, in cases of mortgage, where the mortgagor, of course, has a direct interest in the preservation of the property.
In regard to the delivery of ponderous articles, the authorities are unanimous that the rule thereof is different from that of portable property. These ponderous articles are generally substances that are not sheltered from the weather, but lie around loose on wharfs and in open lots, apparently unprotected and without an owner. Saw logs, piles of lumber, cord wood, pig iron, granite and stone in blocks, bricks, ore, and heavy castings, are in general the representatives of such property. (Lay v. Neville, 25 Cal. 545; Chaffin v. Daub, 14 Cal. 384.)
Chancellor Kent lays down the following rules with regard to bulky articles: " The consent of the parties upon the spot is a sufficient possession of a column of granite, which, by its weight and magnitude, was not susceptible ofany other delivery, and possession was taken by the eyes and the declared intention." (4 Kent, 500.)
Again: " A bill of sale of timber and materials of great bulk, lying on the banks of a canal, or marking the timber, has been held to be a delivery sufficient to make the possession follow the right; it was as complete a delivery and possession as the subject-matter reasonably admitted." (Id. 501; Manton v. Moore, 7 Term, 67.)
In the case of Leonard v. Davis, 1 Black, 482, the question of delivery between buyer and seller was raised of a quantity of saw logs floating in a boom, which the Court disposed of by saying: " While floating in the water, they were only in the constructive possession of the owner, and under such circumstances a symbolical delivery is all that can in general be expected, and is amply sufficient to pass the title." (Ludwig v. Fuller, 17 Me. 166; Boynton v. Veasil, 24 Id. 288; Macomber v. Parker, 13 Pick. 175; Hutchings v. Gilchrist, 23 Vt. 88; Gibson v. Stevens, 8 How. 384.)
JUDGES: Currey, J. Mr. Chief Justice Sanderson expressed no opinion.
OPINION
CURREY, Judge
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 said kiln at his own expense. At the time of the execution of this instrument, the kiln of unburned bricks was not of the value of the consideration expressed. The plaintiff did not attempt to take possession of the property at that time. On the 11th of November thereafter, one Harris, to whom O'Neill was indebted in the sum of two thousand three hundred dollars, threatened a suit for its recovery, when the plaintiff and another person became sureties for its payment, upon which O'Neill, for the purpose of securing the plaintiff against loss on account of this contingent liability, as well as for the amount already due him, made to the latter a formal delivery of the kiln of bricks, by declaration on the ground where it stood, in the presence of a witness, that he delivered the same to him for the purpose stated. At that time, the burning of the kiln had been commenced. O'Neill thence remained in possession of the kiln, attending to the burning of it, and for that purpose employed hands, whom he paid. He also purchased wood with which to burn the kiln. All this was done by O'Neill at the plaintiff's request, and in pursuance of their agreement made on the 22d of October. O'Neill completed the work of burning the kiln on the 19th of the same November, and on the following morning, before the property was attached, informed the plaintiff thereof, and told him to take his property. At some time afterward, on the same day, the property was attached by the defendant. Three days after this, the plaintiff served on the defendant a notice that he was the owner of the property and entitled to its possession, and by the same means demanded of him to deliver it to the plaintiff. At the time of attaching the kiln, O'Neill was not there. The kiln, which was one hundred and thirty feet long, thirty feet wide and fifteen feet high, was then and for several days after too hot to be removed. During the period from the 11th to the 19th of November, and while the bricks were in process of burning, the plaintiff was at the kiln five times, but did not notify any one about the premises of his claim. The Court further found that the plaintiff at the time of the trial had paid half the sum due from O'Neill to Harris; that he had not received anything on his demand of thirty-two hundred dollars; that he and O'Neill believed the bill of sale was operative and valid as a security in his hands, and that all the transactions between them were bona fide and free from fraud. The Court further found that it was not indispensably necessary that O'Neill should have continued in charge and possession of the kiln of bricks after the 11th of November, but that plaintiff could have obtained competent persons to have superintended and performed the work and procured the wood necessary for burning the kiln, and that the work and labor performed by O'Neill, including the wood furnished by him, enhanced the value of the kiln of bricks. The Court further found that after the 11th of November, there was no change in the possession and management of the property from that which existed before then. That from that date to the 19th of the same month inclusive, O'Neill used and controlled the property as before then, and that the " plaintiff had done no acts to give notice or notoriety to his possession of the property."
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 the things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith; " and the seventeenth section of which reads as follows: " No mortgage of personal property hereafter made shall be valid against any other persons than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee." (Stat. 1850, p. 267.)
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 same 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 substantial observance of its salutary provisions. In no case that we are aware of has the Supreme Court of this State laid down a rule requiring less than that the purchaser must have that possession which places him in the relation to the property which owners usually are to the like kind of property. In Lay v. Neville, the Court, in reference to the subject, say: " It was intended that the vendee should immediately take and continuously hold the possession of the goods purchased, in the manner and accompanied with such plain and unmistakable acts of possession, control, and ownership, as a prudent bona fide purchaser would do in the exercise of his rights over the property, so that all persons might have notice that he owned and had possession of the property." In this case, O'Neill was permitted to remain in the possession of the property, for the purpose of burning the bricks--and for aught that could have been seen by the most vigilant he owned it as absolutely and exclusively as he would if nothing had transpired between him and the plaintiff. He employed hands to assist him in the work, and purchased fuel with which to burn the kiln, and in all things, to outward appearances, conducted himself as the owner of the property. There was nothing done by the plaintiff to indicate to any one that he had any property in the kiln of bricks, notwithstanding he visited the premises five times while the bricks were in process of burning. The fact that O'Neill finished the work of burning the kiln the day before it was attached, and informed the plaintiff the next day before the Sheriff levied that he had completed the work and told him to take his property, does not, in our judgment, aid the plaintiff. O'Neill had been all the while, from the time of his contract with the plaintiff, in the actual and open possession of the property, adding by his labor, care, and skill to its value, and this, too, by an arrangement made by him with the plaintiff. After he had done his work, he gave the plaintiff notice that he had completed his part of his contract, and told him to take the property. This was the first time it was ever proposed to make a complete and final delivery of the property, which, if it had been effectuated, would have amounted to an open and visible change of the possession. After this information and notice, there was nothing done to manifest or render it evident that the possession of O'Neill had ceased, or that the plaintiff had acquired the actual possession of the property. We think the case clearly within the mischiefs to prevent which the statute was passed, and that judgment ought to have been for the defendant instead of the plaintiff.
The judgment is therefore reversed, and the Court below directed to enter judgment for the defendant.