
    Francis P. Osborn v. M. Koenigheim.
    (Case No. 4468.)
    1. Delivery of chattels pledged.—A warehouseman’s receipt, negotiable in form, was transferred by the holder as security for a debt to one who at once exhibited the same to the warehouseman having charge of the goods pledged as security, and he at once, at the request of the creditor, and -at his expense, and in his name, effected an insurance on the goods, which were thereafter held for the creditor. Held,
    
    (1) That this constituted such an immediate delivery and continuous possession of the property pledged as is contemplated by the statute (Acts of 1879, p. 134).
    (2) The statute does not require an actual delivery, and whatever act is in law an immediate delivery meets its requirements.
    (3) What constitutes a delivery of chattels must depend on the nature and situation of the property.
    (4) The property was, under the facts in this case and the statutes (arts. 2292-2296, 166, 167), subject to attachment; but he who holds property in pledge cannot avail himself of the statutory remedy provided for the trial of the right of property, if the levy be made on notice as the statute directs, and the pledgee’s possession be not disturbed. If, however, possession be taken by the officer under the attachment, the statutory remedy to try right to property may be resorted to.
    Appeal from Bexar. Tried below before the Hon. Geo. H. Noonan.
    
      T. G. Pray, for appellant.
    I. A mere constructive or symbolical delivery is not sufficient,- as ■ against attaching creditors in good faith. Nothing but an open, visible, substantial change of possession, such an one as would give notice to the public that there had been a change in the ownership' or possession, is such a delivery as is contemplated by the statute. Doyle v. Stephens, 4 Mich., 93; Jude v. Harris, 5 Vt., 234; Butler v. Stoddard, 7 Paige, 166.
    II. As against creditors of the seller, actual delivery to the purchaser, and a continued possession by him, is necessary to perfect a sale. McBride v. McClellan, 6 Watts & Serg., 94.
    
      III. There must be a real or substantial change in the possession of such property; and when a creditor neglects to take and retain possession of the purchased property, it is conclusive evidence of such a trust as to render the transaction fraudulent and void as to other creditors. Kirtland v. Snow, 20 Conn., 23.
    IY. The rule of law requiring the vendee to take and retain possession of property in order to protect it from the vendor’s creditors, is a rule of policy as well as of evidence; its object being to prevent fraud by taking away the temptation to commit it. Moore v. Kelly, 5 Vt., 34 (26 Am. Dec.), 283; Cullen v. Thompson, 3 Yerg., 475 (24 Am. Dec.), 587; Swift v. Thompson, 9 Conn., 63 (21 Am. Dec.), 718; Babb v. Clausen, 10 Serg. & Rawle, 419 (13 Am. Dec.), 684; Mason v. Baker, 1 A. K. Marsh., 208 (10 Am. Dec.), 724; Clow v. Wood, 5 Serg. & Rawle, 275 (9 Am. Dec.), 346; Brook v. Powers, 15 Mass., 244 (8 Am. Dec.), 99.
    Y. The pledge is void as to creditors without notice, because not filed with the county clerk. The statute is imperative. Laws of 1879, p. 134; 31 Barb., 596; 17 Wend., 495.
    YI. The plaintiff could not avail himself of this statute in this proceeding. The statute is for the “trial of the right of property.” The record clearly shows that he was not the owner in any-sense, but simply had a lien upon the property as pledgee. Morton v. Wheeler, 22 Tex., 338; Raysor v. Reid et al., 4 Tex. L. J., p. 684; George v. Dyer, 4 Tex. L. J., p. 439; Rodriguez v. Trevino, 4 Tex. L. J., p. 332; R. S., art. 4843.
    
      L. N. Walthall, for appellee.
   Stayton, Associate Justice.

On the 25th day of April, 1879, the appellee loaned to Michael Bros. $4,400, for which they executed to him their promissory notes, due four months after date, and to secure the same pledged to him forty-nine barrels and ten half-barrels of whisky which they then had stored in the warehouse of Berg & Bro. They also empowered him to sell the property pledged, in case of their- failure to pay the notes at maturity, and to apply the proceeds in payment of the debt.

Michael Bros, held the warehouse receipt of Berg & Bro., which at the time of the loan they indorsed as follows: “ Messrs. Berg & Bro.: Please deliver the within described whisky to M. Koenigheim or order. - Michael Bros.”

Within fifteen minutes after the loan and transfer of the warehouse receipt, the appellee exhibited to the warehousemen his receipt with indorsement thereon, with instructions to them to insure the whisky in the name of the appellee, which they did, the appellee paying the premium for insurance, which amounted to $597.42.

Berg & Bro. held the whisky for the appellee until the 25th day of August, 1879, at which time the appellant caused an attachment to be levied thereon, which issued in a suit instituted by him against Michael Bros, on the 11th of July, 1879.

This action was instituted by the appellee under the statute to try the right of property; a trial was had, and a judgment rendered in favor of the appellee, and from that judgment this appeal is prosecuted.

It is claimed that the pledge to the appellee is void because no actual delivery of the property was made immediately after the pledge was given, followed by an actual and continued change of possession of the pledged property, there having been no copy of the writing by which the pledge was made filed in the office of the county clerk of the county in which the property was situated.

The statute relied upon reads as follows: “That every chattel mortgage, deed of trust, or other instrument of writing intended to operate as a mortgage of, or lien upon, personal property, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the property mortgaged or pledged by such instrument, shall be absolutely void as against the creditors of the mortgagor or person making the same, and as against subsequent purchasers and mortgagees or lien-holders, in good faith, unless such instrument or a true copy thereof shall be forthwith deposited with, and filed in, the office of the county clerk of the county where the property shall then be situated; or if the mortgagor or person making the same be a resident of this state, then of the county of which he shall at the time be a resident.” “Acts of 1879, 134.

The first question in this cause is, Was there such an immediate delivery of the property in controversy to the appellee as is required by the statute?

The statute does not in express terms require that there shall be an immediate actual delivery of property pledged, and whatever act is in law an immediate delivery must be held sufficient.

What constitutes delivery is a matter of law, and it has been held in a great number of cases that this depends largely upon the nature, character and situation of the property.

The necessities of commerce and the customs of business have long caused to be recognized as valid delivery such symbolical delivery as is evidenced by the transfer of bills of lading for property in transit,, and of warehouse receipts for property on storage. Adoue v. Seeligson & Co., 54 Tex., 602.

The rule is thus stated: “ Delivery, in order to be effectual, should be followed by an acceptance of possession; and methods of delivery and acceptance differ according to subject matter and situation of the thing. But constructive delivery and acceptance are now much favored in such transactions. The transfer of a bill of lading of a ship at sea, or the delivery of a warehouse key, have long been esteemed sufficient for legally transferring the possession of the thing so symbolized. . . . Warehouse receipts, and the receipts of wharfingers or other kind of custodians, are also, when expressed in negotiable form, permitted, in a variety of instances, to be turned1 over by way of symbolical delivery of the goods on storage which they represent.” Schouler’s Bailments, 179; Story on Bailments, sec. 297; Cartwright v. Wilmerding, 24 N. Y., 521; Taylor v. Turner, 87 Ill., 297; Whitney v. Tibbitts et al., 17 Wis., 371.

The warehouse receipt executed by Berg & Bro. was negotiable in form; was duly transferred to the appellee, who at once exhibited the same to Berg & Bro., who, at the request of appellee, and in his name, and at his expense, effected an insurance upon the whisky, and thereafter held the same continuously for him. This was such immediate delivery and continuous possession as is contemplated by the statute, and the pledge to the appellee must be held valid.

The remaining question in the case is, Was the property subject tole vy under the attachment; and if so, is the remedy pursued in the cause the proper one?

Whatever diversity of opinion may have been entertained in regard to the right to levy an attachment or execution upon property which a debtor has pledged to another, there can be no question of the fight to make suck levy since the adoption, of the Revised Statutes.

The statutes provide that goods and chattels pledged, assigned, or mortgaged as security for any debt or contract, may be levied upon and sold on execution against the person making the pledge, assignment or mortgage subject thereto; and the purchaser shall be entitled to the possession wkere it is held by the pledgee, assignee or mortgagee, on complying with the conditions of the pledge, assignment or mortgage.” R. S., 2296.

The statute further provides that “ The writ of attachment may be levied upon such property, and none other, as is, or may be by law, subject to levy under the writ of execution.” R. S., 166.

It also provides how levy shall be made, Avhen the execution debtor is not entitled to the possession of the property, as follows: M Where the defendant in execution has an interest in personal property, but is not entitled to the possession thereof, a levy is made thereon by giving notice thereof to the person who is entitled to the possession, or one of them when there are several.” R. S., 2292. This manner of levy should be pursued when the attachment or execution is levied upon property in the hands of a pledgee. R. S., 167.

Under these provisions of the statute, the property was.subject to attachment, and the question as to whether or not the levy was properly made in this case need not now be considered. ■ If property pledged and in the possession of the pledgee be levied upon as the statute requires, the pledgee would not have the right to institute a proceeding under the statute to try the right of property.

The rule prior to the adoption of the Revised Statutes was that this statutory remedy could not be used by one who only had a lien upon the property levied upon. Gillian v. Henderson, 12 Tex., 47; Allen v. Russell, 19 Tex., 87; Belt v. Raguet, 27 Tex., 471.

The mode of levying upon and sale of property held in pledge, and to the possession of which the pledgee is entitled, being now provided by the Revised Statutes, we are of the opinion that one who holds property in pledge cannot avail himself of the statutory remedy provided by statute for the trial of the right of property,, if the levy be made as the statute directs and the pledgee’s possession be not disturbed.

If the right of the holder of a lien be imperiled, but his possession be not disturbed, as was said in Belt v. Raguet, 27 Tex., 482, “ it would seem more consonant with principle that he should (protect it) do so by appeal to the equitable powers of the court in the exercise of its general jurisdiction, than by a resort to the statutory remedy for the trial of the right of property.”

The statute regulating the trial of the right of property is intended to give to one who'claims to be the owner of property, or to one who is entitled to the possession of property, a simple remedy by which he may protect both his title and possession.

In this cause it appears that the levy, or at least such is the inference from the record; was' made by the officer taking possession of the pledged property; and this, in our opinion, entitled the appellee to resort to the statutory remedy to protect his possession.

If, under the statute, the appellant should desire to sell such interest as his debtor has in the property, he can do so, but the purchaser at such sale will have no right to the possession of the property unless he satisfies the debt for which it stands pledged.

There being no error in the judgment of the court below, it is affirmed.

Affirmed.

[Opinion delivered May 9, 1882.]  