Stevens v. Irwin

California Supreme Court Jul 1, 1860Published

Before: Baldwin

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Holding. The court held that the Statute of Frauds requirement for an 'actual and continued change of possession' does not mandate that a vendor be perpetually excluded from all use or control of property, provided the vendee's initial possession was open, unequivocal, and substantial.

Issues

Whether a vendor's subsequent resumption of possession of property renders a prior sale fraudulent and void as a matter of law under the Statute of Frauds.
Whether the 'actual and continued change of possession' requirement necessitates a perpetual exclusion of the vendor from the property.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The “ continued change of possession,” then, does not mean a continuance for all time of this possession, or a perpetual exclusion of all use or control of the property by the original vendor.”

“The delivery must be made of the property; the vendee must take the actual possession; that possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee.”

Synopsis

Where a vendee of personal property buys it Iona fide, takes possession openly, and holds it in exclusive possession for a year or more, and afterwards puts the property into the possession of the vendor, as attorney in fact of the vendee, this qualified possession of the vendor does not, as matter of law, show the sale to be fraudulent, and void as against the creditors of the vendor.

Our Statute of Frauds (Act of 1850, sec. 15) was not intended to go beyond the extreme rule adopted by the Supreme Court of the United States and the English Courts, to wit: that retention of the possession of personal property by the vendor, after an absolute sale, is per se fraud. The word “actual” in the statute was designed simply to exclude a mere formal change of possession, and the word “continued” to exclude a mere temporary change. But the statute does not require that the vendor, under penalty of forfeiture of . the goods, shall never have any control over or care of them.

All the statute requires is, that delivery must be made; the vendee must take actual possession; the possession must be open and unequivocal, carrying with it the k usual marks and indications of ownership by the vendee. The possession must be continuous—not taken to be surrendered back again—not formal, but substantial. But it need not necessarily continue indefinitely, when it is bona fide and openly taken, and is kept for such a length of time as to give general advertisement of the status of the property,' and the claim to it by the vendee.

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This was an action for the recovery of certain property levied on by defendant, as Sheriff, under process, as the property of one B. C. Stevens. The case was here before, and judgment was reversed on a question of law not affecting the merits. Two verdicts and judgments have been had for plaintiff on the main question involved. The proofs are conflicting, and it would require a very strong case to induce us to interfere with the action of the Court below in refusing a new trial.

1. This point is not much pressed by appellant. It is not well taken.

2. The main ground insisted on by the appellant is, error in the instruction of the Court upon the question of fraud, which was the real matter before the jury. It was claimed by the defendant that this property sued for (being mules, etc.) was really the property of one Benjamin Stevens, and that the pretended sale, insisted on as giving the ownership to Isaac, the plaintiff, was a sham. It is said the proof shows that a part of this property was, some twelve or eighteen months before the levy, in the possession of Benjamin Stevens, who then transferred it, with the livery stable and property connected with the business, to Isaac, who went into possession, and remained ostensibly in the [505]control of the property for something more than a year, when he went to the Atlantic States, leaving Benjamin in possession, with a power of attorney to act as his agent; that Benjamin, though under color of this authority, resumed possession of these mules, etc., and that this resumption of possession, thus acquired, is fatal to the plaintiff’s claim, under the fifteenth section of the Statute of Frauds, which requires an actual and continued change of possession as a necessary element of the validity of the title. The appellant contends that the fact of this subsequent possession by the vendor, as matter of law, is of itself conclusive proof of fraud in the conveyance. Unless the proposition can.be maintained in this extent, as the record stands, the appellant cannot make good his assignment.

The section of the Statute of Frauds, the construction of which is thus involved, is in these words (Wood’s Dig. 107) : “ 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 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.”

Stevens v. Irwin

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