Statement of Facts.

merchandise usually kept in a store in the country. That he had several clerks in his employ in his business.

2. That at that time he was indebted to Jerry Ford, the plaintiff in this suit, and his brother, about the sum of ten thousand dollars.

"3. That on the 28th of October, 1859, Arrington & Co. obtained a judgment against said William Ford for $5,063.09, in this Court, for goods before that date sold to said William Ford.

"4. That on the first day of November, 1859, an execution was issued upon the said judgment and immediately forwarded to R. C. Chambers, the defendant in this action, and then Sheriff of Plumas County.

"5. That on the first day of November, 1859, the said Jerry Ford arrived at Quincy from San Francisco, and said William Ford agreed to sell to the said Jerry Ford his entire stock of goods, and the amount thereof to be credited upon the debt which William Ford then owed Jerry Ford.

"6. That Jerry Ford and William Ford's clerks, then in the store, proceeded to take an inventory of the stock of goods in the said store, and so continued from day to day until the morning of the 5th of November, 1859, and the amount of such inventory was charged in the books of William Ford to Jerry Ford.

"7. That the evidence of the indebtedness from William Ford to Jerry Ford was an entry of such debt in the said books of William Ford, and the amount of the said inventory was entered in the same books as so much paid upon said debt.

"8. Within two hours after the inventory was made, and the entry of the amount thereof was made in the books as aforesaid, the defendant as Sheriff, with the aforesaid execution, entered the said store and levied upon the entire stock therein and proceeded to take an inventory thereof, and did make an inventory of the same and took them into his custody as such Sheriff, and in the month of December following sold te same under said execution.

Statement of Facts.

"9. That a portion of the goods levied upon were in a warehouse about one hundred and twenty-five feet from the principal storehouse.

"10. That during the time of the taking of the inventory by the said Jerry Ford and clerks the goods remained in the said store the same as before, and a portion of them were sold by Jerry Ford and the clerks during that time and up to the time of the levy of the defendant.

“11. During this time, and for some days previous to that time, William Ford was sick in the upper part of said store, which part had been and then was occupied by the said William Ford and the said clerks as sleeping apartments, the entrance to which was by a stairway outside and apart from said storehouse, through a woodshed.

"12. That during the time of the taking of said inventory, and up to the time of the said levy, the said Jerry Ford was there present in the store, giving directions as to the goods, and was selling goods to customers as they called for that purpose.

"13. On the 5th of November, 1859, the said William Ford gave the said Jerry Ford a lease of the said store, dated the 2d day of November, 1859, and it was so dated to correspond with the time of the taking of the inventory under the contract of sale from William Ford to Jerry Ford.

"14. The clerks in the store at the time of taking the inventory and of the levy were the same clerks in the employ of William Ford on and before the 1st day of November, 1859, and it does not appear that there was any specific hiring or employing of said clerks by Jerry Ford before the levy.

"15. William Ford had a small sign over the door of the said store, upon which was the name 'Ford,' and said sign continued over said door without any alteration up to the time of the said levy.

"16. That after said levy by the said defendant, he (the defendant) rented from Jerry Ford the said warehouse to store the said goods on which he had so levied and taken under the said execution.

Argument for Appellant.

"17. That at the time of the said levy, the said Jerry Ford gave the defendant notice that he was the owner of the goods, and forbid him from taking the same under said execution.

"18. The inventory of that portion of the goods in the warehouse was completed, and the amount thereof entered in the books of William Ford before the defendant levied upon such portion; and that such portion of goods in said warehouse thus seized were worth at the time of the levy at Quincy $2,440, and the whole store of goods so taken and sold by the said Sheriff were, at wholesale price, at said Quincy, of the value of $6,000 at the time of said levy."

The Court also found as conclusions of law:

"That there was no immediate delivery nor actual or continued change of possession of the said goods from the said William Ford to the said Jerry Ford, and that the said sale as to the creditors of the said William Ford was fraudulent and void, and that the defendant is entitled to judgment."

Defendant recovered judgment in the Court below, and plaintiff appealed from an order denying a new trial and from the judgment.

This case was before the Supreme Court at the October term, 1861, and is reported in the 19 Cal. 144.

E. D. Wheeler for Appellant.

The sale of the stock of merchandise from William Ford to Jerry Ford, was a legal and valid sale, and vested the title in the plaintiff:

1st. Because there is neither proof nor pretence of actual fraud.

2d. The delivery was immediate, and the change of possession actual and continued. (Stevens v. Irwin, 15 Cal. 503; Lay v. Neville, 25 Cal. 545; Godchaux v. Mulford, 26 Cal. 316.)

3d. Plaintiff had no knowledge of Arrington & Company's claim, nor of the issuance of the execution. But even if

Argument for Respondent.

plaintiff knew, at the time he purchased from William Ford, that there was an execution in the officer's hands against the property of his vendor, it did not render the transaction fraudulent. (Wheaton v. Neville, 19 Cal. 41.)

The Statute of Frauds, like all other statutes, must be reasonably construed; and we are not aware that any especial sanctity attaches to that statute, or that it is obligatory on the Courts of the land to give to it a more strict or literal construction than belongs in common to the various legislative enactments standing upon our statute books. It was virtually held at one time by the Supreme Court of this State, that the "immediate delivery" required by the statute, meant an almost instantaneous delivery; but subsequently it was determined that the character of the property sold, its situation, and all the attendant circumstances should be taken into consideration in determining whether the delivery had been made within a reasonable time or not. And again, it was held that the "continued change" of possession required by statute, in reality meant an unbroken and perpetual change of possession; but this Court subsequently held that the terms "actual and continued" were used merely in contradistinction to the terms formal and temporary; and that even though the chattel sold should at some future time revert, temporarily, to the hands of the vendor, yet it would not, while thus in his hands, be subject to seizure for his debts, provided the vendee, pursuant to his purchase, had possessed it long enough to satisfy a reasonable mind of the bona fides of the transaction. (16 Cal. 503.)

J. P. Hoge, and H. H. Haight, for Respondent.

This Court is so familiar with the authorities upon this subject that we propose to dismiss them with a very brief review.

And one remark is to be made here, that the late cases modify the earlier ones to this extent only, that the employment of the vendor by the vendee after a lapse of a longer or

VOL. XXVIII-2

Opinion of the Court.

shorter time is not a fact of such a controlling character as of itself to make the sale void against creditors. This, we understand, is the only respect in which the earlier cases in this State are modified, and this modification has no bearing upon the case at bar.

The case of Stevens v. Irwin, 15 Cal. 503, in which the modification above referred to was first made, was a case in which the vendee had been in possession more than a year, and the vendor then went into his employ. This was very properly held not fatal; but in that very case Judge Baldwin lays it down that the change of possession must be open and unequivocal, carrying with it the usual marks of change of ownership, so as to give evidence to the world of the claims of the new owner.

The delivery and change of possession need not have consumed more than twenty minutes. The amount of credit to be given was to be arrived at by computation after taking an inventory, and was not an essential part of the delivery or change of possession. If the credit were not entered for six months, or not at all, it would not affect the delivery and change of possession if that were in compliance with the

statute.

Instead, however, of making an immediate delivery and actual change of possession, there was, after the lapse of four days, no change whatever, much less that actual change which Courts have over and over again declared to signify open, public, unequivocal, and notorious. (Struper v. Echart, 2 Wharton, 303; Jarvis v. Davis, 14 B. Monroe, 529; McBride v. McClelland, 6 Watts & Sergt. 95.)

By the Court, SAWYER, J.

The main question in this case is, as to whether there was an immediate delivery of the stock of goods to plaintiff, Jerry Ford, before the levy of defendant, within the meaning of the fifteenth section of the Statute of Frauds, so as to render the sale valid as against creditors. We are satisfied that there