Page:North Dakota Reports (vol. 3).pdf/119

 another party might have exclusive control of the building; hence the existence or nonexistence of such an agreement was entirely immaterial in the case, and the offered evidence was properly excluded.

Section 4657, Comp. Laws, reads as follows: “Every transfer of personal property, other than a thing in action, or a ship or cargo at sea or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the 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, and the successors in interest of such creditors, and against any person on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or incumbrancers in good faith subsequent to the transfer.” It is claimed that there was no such immediate delivery and actual and continued change of possession in this case as the statute contemplates. It will be noticed that under our statue the failure to comply with its terms raises a conclusive presumption of fraud. Under statutes of this character it is perhaps true that somewhat higher evidence of delivery is required than under statutes where the fraudulent presumption raised by the law may be rebutted. Ludwig v. Fuller, 17 Me. 162. The delivery in this case was symbolical, as distinguished from actual, (which takes place when there is manual tradition of the property from vendor to vendee,) or constructive, (which is effectedaffected [sic] by bill of sale when the property is not present, as a ship at sea, or by the parties approaching within view of the property, and the vendor proclaiming delivery to the vendee when the property is ponderous to a degree that precludes actual delivery.) But the symbolical delivery that is manifested when the vendor delivers to the vendee the key to the building where the property is stored has long been regarded