Shepherd v. Gamble

MOORE, P. J.

The question for decision is whether the transfer of a huge tractor was void under section 3440 of the Civil Code by reason of the circumstances proved with respect to its delivery.

Defendant Gamble owned an 11%-ton tractor. At the time of his sale to respondent it was located on the Gier ranch 53 miles from Redding where respondent was in business. After the sale on July 8, defendant instructed Gier to release it to respondent. On July 15, appellants caused it to be attached at the Gier place as the property of defendant. Upon the issue raised by respondent’s third party claim the court below adjudged claimant to be the owner and entitled to the possession of the machine. Appellants demand a reversal of the judgment on the ground that the transfer, as to them, was

[892]

fraudulent in not having been accompanied by immediate delivery followed by an actual and continued change of possession.

Appellants contend (1) that respondent should have immediately removed the tractor with his own truck and trailer or have employed another available trucking firm 23 miles from the Gier ranch to transport the tractor to

Redding;

(2) that change of possession must be actual and not merely potential or theoretical.

Whether movable property after its sale has been delivered and its possession changed is a question of fact to be determined from all the evidence. The finding of such fact is conclusive upon the reviewing court unless it is clear from the evidence and from the inferences favorable to the finding that the determination derived by the trial court is without substantial evidential support.

(Hassell

v.

Bunge,

167 Cal. 365, 366 [139 P. 800];

Porter

v.

Bucher,

98 Cal. 454, 459 [33 P. 335];