Harmon v. Hawkins , 18 Mont. 525 ( 1896 )

Pemberton, C. J.

The sheep in controversy, as shown by the complaint, were, at the time it is alleged Batchelor purchased them of Bowman and Merrill, all in the possession of Bowman. It is nowhere alleged that Bowman and Merrill, or either of them, ever delivered the sheep to Batchelor. The most that can be claimed is that when Batchelor purchased the sheep they were in the possession of Bowman, and that they were permitted to remain in his possession upon his alleged promise to herd and care for them until they were otherwise disposed of. It is not alleged that there ever was an actual delivery of the sheep to Batchelor by Bowman and Merrill or either of them. There is no allegation in the complaint that there was a change of possession at the time Batchelor purchased the sheep, or at any other time before they were attached by the defendant. The defendant is the sheriff of Custer county, and attached the sheep, in possession of Bowman, as such officer in a suit by one Jordan against said Merrill, and afterwards sold the sheep under an execution issued out of the district court of said county in said suit. These facts constitute the conversion alleged in the complaint.

It is stated in the brief of counsel for the respondent that the court held the complaint bad because of the want of an averment therein that Batchelor ever took actual posession of the sheep under his alleged purchase from Bowman and Merrill. Section 226, div. 5, Compiled Statutes 1887, under which this case was tried, is as follows:

‘ ‘Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by the immediate delivery, and be followed by an actual and continued change of possession of the thing sold and assigned, shall be conclusive evidence of fraud as against the creditors of the vendor or the person making such assignments, or subsequent purchasers in good faith. ’ ’

We think the allegations of the complaint fall far short of stating facts sufficient to constitute an immediate delivery, and an actual and continued change of possession, of the sheep, as required by said statute, in order to constitute the sale to Batchelor valid against creditors and subsequent purchasers in good faith.

The action of the court in sustaining the demurrer to the complaint is the only error assigned. We see no error in the action of the court. The judgment appealed from is affirmed.

Affirmed.

De Witt and Hunt, JJ., concur.