Page:North Dakota Reports (vol. 2).pdf/434

 ent claim against the defendant in his fiduciary capacity. The assignment of error is sustained, and the order of the district court must be reversed. All concur.

William S. Conrad, Plaintiff and Respondent, v. Charles W. Smith, as Sheriff of Cass County, North Dakota, Defendant and Appellant.

Fraudulent Conveyances—Want of Change of Possession.

On the sale of a stallion in the possession of a bailee, the vendor, in the presence of the vendee, notified the bailee of such sale; but the vendor, with the consent of the vendee, continued after the sale to use the horse the same as before the sale, until the animal was seized under attachment by creditors of the vendor. Held, that there was not a sufficient, actual and continued change of possession to take the case out of the provision of § 4657 of the Compiled Laws, and the sale was therefore void, under the evidence adduced, as to the creditors of the vendor who had attached the horse.

APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.

Tilly & Stewart, for appellant. Ball & Smith, for respondent.

Action by W. S. Conrad against Charles W. Smith, as sheriff of Cass county, to recover the value of a certain horse. Verdict and judgment for plaintiff. New trial denied. Defendant appeals. Reversed.

Tilly & Stewart, for appellant:

The delivery contemplated by statute must be an actual one and the change of possession must be visible and continuous. Bump on Fraud. Con., pp. 168, 169, 170, 183; Bunting v. Saltz, 24 Pac. Rep. 167; Merrill v. Hurlburt, 63 Cal. 494; Cook v. Rockford, 12 Pac. Rep. 568. See also Norton v. Doolittle, 32 Conn. 408; Meade v. Noyes, 44 Conn. 487. Error was assigned in the trial court permitting a witness to testify as to the value