Page:North Dakota Reports (vol. 2).pdf/439

 the character and situation of the property and the relation of the parties.” See, also, cases cited in note to Claflin v. Rosenberg, 97 Amer. Dec. 346, and Murch vy. Swenson, 40 Minn. 421, 42, N. W. Rep. 290. But there was nothing in the character of the property or the situation of the parties in the case at bar which renders an actual delivery and utter abandonment by the vender of all apparent control over the property inconvenient or unreasonable. It was unnecessary that the vendor should have been given authority to continue to use the horse as before the sale. It is not important that he continued to use him as the property of Conrad. There was nothing in his conduct to indicate any change in his relation to the horse; and this conduct, which created an appearance of a continuance of his former ownership, had the express approval of Conrad himself. We do not see how there was anything to submit to the jury on these undisputed facts. When there is nothing in the nature of the property or the situation of the parties to render unreasonable an actual delivery and an absolute severing of the owner's former relations to the property—the utter abandonment of all apparent control over it—then the statute is peremptory, and the question on undisputed evidence is one of law for the court. See cases cited in note to Claflin v. Rosenberg, 97. Amer. Dec. 345; and the recent case of Stephens v. Gifford, 20 Atl. Rep. 542, 137 Pa. St. 219. This is peculiarly in point, as in that state the courts incline strongly to the view of submitting the question to the jury as a question of fact; and yet the court held the sale void as a matter of law in this case, It is impossible to reconcile all the cases, and useless to cite them. Nor would it be wise to attempt to lay down any general rules to govern the application of this statute. We might, however, say that, as the presumption of fraud is conclusive in this state, it will not do to establish too rigid and severe a rule, lest great injustice result. We feel that the statute works a wrong in this case, as it appears to be conceded that plaintiff paid a fair price for the horse, and bought it in good faith, and was governed by no bad motive in leaving it in the possession of McKee. It is a matter for the serious consideration of the legislature whether a statute under which a wrong like that wrought