Page:North Dakota Reports (vol. 2).pdf/436

 as sheriff, justifies under the writ, and claims that the transfer of the stallion was fraudulent and void as to the plaintiffs in the warrant of attachment, creditors of McKee, under the provisions of § 4657 of the Compiled Laws. This section declares that “every transfer of personal property * * * is conclusively presumed, if made by a person having at the time the possession or control of property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent and therefore void against those who are his creditors while he remains in possession,” etc. The trial court refused to submit any other question to the jury than the one of damages, and the defendant is here for the purpose of reviewing this ruling; and he also insists that the trial court erred in refusing to hold as a matter of law,. under the facts, that there was not a compliance with § 4657. He claims that there was no fact to submit to the jury, because the undisputed evidence showed a failure to make an immediate delivery, and also established that there was not an actual and continued change of possession. Defendant is not in position to avail himself of this claim on this appeal. His motion that the court direct a verdict in his favor was made at the close of plaintiff's case, and before defendant had established the relation of creditor and debtor between the plaintiffs in the warrant of attachment and McKee. Of course, until this relation had been established, the defendant was not in shape to justify as sheriff, for, as between the parties to the transaction, the sale was valid, and passed a good title. And the defendant waived his motion by failing to renew it after he had offered evidence subsequently to the over-ruling of his motion. Bowman v. Eppinger, 1 N. D. 21. But if he would have been justified in insisting upon the direction of a verdict in his favor, he was certainly entitled to have the question submitted to a jury. The exceptions taken by him to the charge, and the refusal of the court to charge, raised this question. The facts are uncontroverted. On October 1, 1889, McKee sold the stallion to Conrad, the plaintiff, who paid him $500 for the animal. The stallion at this time was in the livery barn of Wil-