Bunting v. Saltz
Before: Sharpstein
Synopsis
Statute of Frauds — Sale of Personal Property — Actual and Continued Change of Possession. — A transfer of personal property, not accompanied by an immediate delivery, and an actual and continued change of possession, is conclusively presumed to he fraudulent, and therefore void as against the creditors of the vendor.
Id. — Definition of “Actual.”—The word “actual,” as applied to the change of possession required by section 3440 of the Civil Code, means existing in act, and truly and absolutely so; really acted or acting; carried out; opposed to potential, possible, virtual, or theoretical.
Id.—Insufficient Evidence of Change of Possession — Attachment of Farm-wagon Retained on Homestead—Agency.—The evidence is insufficient to show an actual and continued change of possession of a farm-wagon attached by a creditor of the vendor, if it appears that the wagon was retained upon a farm properly claimed as a homestead by the vendor’s wife, and upon which the family of the vendor continued to reside, after the wagon had been sold to the mother of the vendor, who was a non-resident of the state, though it may appear that the vendor had ceased farming and engaged in other business, .and that his wife and her father were the authorized agents of his mother to act for her in regard to the property sold to her.
Id. —Authority to Take Possession. —Such transaction could amount to no more than an authority to the vendee to take actual possession of the farm-wagea, which she failed to do.
Id__Invalid Conveyance of Homestead. — A deed of the husband, in
which the wife does not join, purporting to convey the homestead to a vendee, to whom he has sold a farm-wagon situated thereon, is wholly inoperative as a conveyance of the homestead, and does not constitute any evidence of a change of possession of the premises or of the farm-wagon.
Id. — Change of Indicia of Ownership. — There is no sufficient change of possession when the property appears to remain, to all external appearances, in the same condition in which it was before the sale, and there is nothing to notify third persons of the claim of the new owner. The possession of the vendee must be open and unequivocal, Carrying with it the usual marks and indications of ownership by the vendee.
Id__Constructive Possession of Personal Property Sold—■ Change
of Ownership of Land Insufficient. — Constructive possession by the vendee of personal property sold, or the mere transfer of ownership of land on which the personal property is situated, is not alone sufficient to constitute the change of possession of the personal property required by the statute of frauds; but the possession of the personal property must be so changed as to indicate by the change that the former owner no longer owns it.
Sharpstein, J. This is a case in which the plaintiff’s right to recover depends not only upon a transfer to her [170]of the property which, she alleges, was wrongfully and unlawfully taken from her possession and converted by the defendants to their own use, but likewise upon her actual possession of it at the time of such alleged taking and conversion. If the transfer was not accompanied by an immediate delivery, and followed by an actual and continued change of possession, it is conclusively presumed to be fraudulent, and therefore void as against the creditors of the vendor. (Civ. Code, sec. 3440.) ■ “Actual” means existing in act, and truly and absolutely so; really acted or acting; carried out; opposed to potential, possible, virtual, or theoretical.
If there is no evidence of an actual change of possession of the property claimed to have been transferred by the plaintiff’s vendor to her, then the verdict of the jury was not justified by the evidence, and the defendant’s motion for a new trial should have been .granted on that ground, and the order denying said motion must be reversed.
The plaintiff resides in the state of New York, and is not shown to have been ever in this state. Whatever right she had in the wagon in controversy she acquired from her son, John A. Bunting, who, at the time of and before the transfer of it to her, resided with his family upon a small farm in Alameda County, in this state. In the month of October, 1883,- Fleda 0. Bunting, wife of John A. Bunting, duly filed a declaration of homestead upon said farm. There is no evidence that said homestead has ever been abandoned. In December, 1883, John A. Bunting made a conveyance of said farm to his mother, plaintiff herein, but Fleda 0. Bunting, his wife, did not join in the execution of said conveyance. There is evidence tending to prove that, after the execution of said conveyance, John A. Bunting ceased to carry on farming upon said farm, and spent most of his time elsewhere, occasionally returning to the farm, where his wife and children remained. There is also evidence tending
[171]to prove that his wife and her father, one Overaclcer, were authorized by the plaintiff to act for her, as her agents, in regard to the interests acquired by her from the conveyance and transfer of property to her by her son, John A. Bunting. The deed of John A. Bunting purporting to convey to plaintiff the premises, upon which a homestead had been impressed, was wholly inoperative as a conveyance of such homestead, and did not constitute any evidence of a change of possession of the premises, either actual or constructive. “The possession by the plaintiff of the farm upon which the personal property was when it was purchased by her, provided it was an actual and exclusive possession, would be strong evidence of the like possession of such personal property.” (Cahoon v. Marshall, 25 Cal. 197.)
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