
    Simon Swartzburg v. W. J. Dickerson, J. D. Dyer, W. W. Spawr, I. A. Smith, H. Arrington, E. C. Nichols, and S. S. Rains.
    (Filed June 6, 1903.)
    SALE — Possession, Change of. An, actual and continued change of possession as contemplated by the statute must be open, notorious and unequivocal, and such a change as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands, and the title has passed from the vendor to the vendee.
    (Syllabus by the Court.) -
    
      Error from the District Court of Pottawatomie County; before Benj. F. Burwell, Trial Judge.
    
    
      J. H. Woods, for plaintiff in error.
    
      Frederick King and H. F. Howell, for defendants in error.
   Opinion of the court by

Hainer, J.:

This was an action commenced in the district court of Pottawatomie county by the plaintiff in error, against W. J. Dickerson and others on bis official bond, for the wrongful seizure and sale of a certain stock of goods alleged to be the property of the plaintiff under certain orders of execution issued from the probate court of said county, which executions were directed to W. J. Dickerson, as sheriff, commanding him to satisfy the same from the goods and chattels of one A. C. Pickens. The plaintiff averred in his petition that the goods seized and sold under said execution were his property. The defendants answered by a general denial, and that the property levied upon under the executions was not sold in good faith by said Pickens to the plaintiff, but that the change of possession of such goods from Pick-ens to the plaintiff was only a pretended sale, and made for the purpose of defrauding and cheating the just creditors of Pickens. To this answer a reply was filed consisting of a general denial. Dpon the issues thus framed 'the cause was tried by a jury, and a verdict returned in favor of the defendants. The plaintiff brings the case here on appeal. The judgment of the court below is sought to be reversed on the ground that the court erred in giving instructions four and five to the jury. Instruction four reads as follows:

“The sale of goods or property by one who is involved deeply in debt and unable to meet his obligations, in order to be valid against the creditors of the grantor, must be accompanied by open and notorious change of possession from the grantor to grantee; and in this connection the court instructs you that unless you believe from the evidence that the plaintiff purchased the goods in question from A. C. Pickens in good faith and immediately took open and notorious possession of said goods, such as would .apprise the defendant and community of such change of possession you must find for the defendant as to any goods he claimed he purchased from the said A. C. Pickens. 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 possession of the judgment debtor has ceased.”

And instruction five is as follows:

“You are further instructed that if you find that the plaintiff had a portion of the goods in question stored in the Pickens-store, and afterwards mixed and secreted them with goods he claims he purchased from Pickens, and you further find that said Swartzburg, plaintiff, caused said goods alleged to have been purchased from Pickens to be hidden and secreted, and did not take open and notorious possession of said goods, then you must find for the defendant.”

It is contended by the plaintiff in error that these instructions went too far as to what is necessary in law to constitute a change of possession of goods, in using the word “notorious,” and the phrase, “such as would apprise the defendant and community of the change of possession,” and “such as render it evident that the possession of the judgment debtor has ceased,” and “hidden ahd secreted.”

The contention, in our opinion, is not well taken.

By the express and positive terms of our statute, every transfer of personal property, if made by a person having at the time the possession or control of the property, .and not accompanied by an immediate delivery, and followed by an actual and continued change of possession, is conclusively presumed to be fraudulent, and therefore void as against those who are creditors of the one making such transfer, while he remains in possession and the successor in interest of such creditors. It follows that an actual and continued change of possession, as contemplated by the statute, must be open, notorious and unequivocal, and such a change as to apprise the community or those who are accustomed to deal with the party that the goods have changed hands, and that the title has passed 'from the vendor to the vendee.

The supreme court of the territory of Dakota in construing what constitutes a change of possession within the-meaning of this statute in 1884, in the case of Grady v. Baker, 19 N. W. 417, uses the following language:

“It means that the sale shall be open and public; that the world may be apprised' of the change of ownership. The •change of possession must be actual and continued, and not subject to some secret trust between the seller and buyer. If .such is the character of the possession, the statute is satisfied, -and the sale will not be avoided.”

In our opinion the instructions fairly state the law as 'applied to the evidence in this ease; and the answers to the •special interrogatories submitted to the jury fully sustain the •verdict and the judgment of the trial court.

The judgment of the court below is therefore affirmed.

Burwell, J., who presided in the court below, not sitting; ZBurford, C. J., dissenting; all the other Justices concurring.  