Page:North Dakota Reports (vol. 3).pdf/116

 James Morrison vs. Thos. N. Oium.

Opinion filed Nov. 17th, 1892.

Sale—Transfer of Possession.

When, at or prior to the time of the execution of a bill of sale of personal property, the vendor, with intent to transfer the title and possession of the same, pointed it out to the agent of the vendee, where it was contained in boxes and crates, and stood in a warehouse, and subsequently locked the building, and delivered the key to such agent, who thereafter retained it, there was such an immediate delivery and actual and continued change of possession as fulfills the requirements of § 4657, Comp. Laws.

Joint Possession of Building Where Stored.

Such delivery is not impaired by the fact that a third party may also have had property in the same warehouse, and held a key thereto; nor by the further fact that the vendor may have agreed with such third party that his possession should be exclusive.

Appeal from District Court, Ransom County; Lauder J.

Action for the possession of personal property by James Morrison against Thomas Oium, sheriff. Plaintiff had judgment, and defendant appeals.

Affirmed.

Goodwin, Van Pelt and Gammons, for appellant.

A transfer of personal property, if not accompanied by an immediate delivery, and followed by an actual and “continued change of possession is conclusively presumed to be fraudulent, § 2024 Civil Code, Conrad vy. Smith, (N.D.) 51 N. W. Rep. 720; Longley v. Daly, (S. D.) 46 N. W. Rep. 247; Cook v. Rochford, 12 Pac. Rep. 568; Young v. Poole, 13 Pac. Rep. 492; Comatia v. Kyle, § Pac. Rep. 666; Stull v. Weigle, 8 At. Rep. 578; Batcher v. Berry 13 Pac. Rep. 45; Sweeney v. Coe, 21 Pac. Rep. 705; Murch v. Swenson, 42 N. W. Rep. 290. If there is a doubt as to the sufficiency of the delivery the benefit Sf the doubt must be given to the creditor. Anderson v. Brennerman 6 N. W. Rep. 222; Smith v. Greenop, 26 N. W. Rep. 332.

C. W. Buttz, for respondent.