Doak v. Brubaker , 1 Nev. 218 ( 1865 )

Opinion by

Lewis, C. L,

full Bench concrirring.

But one question is raised on tbe record in tbis case, i. e.: Do tbe facts found by tbe Court show a delivery of tbe cattle sufficient to enable tbe plaintiff to bold them against tbe creditors of tbe mortgagor?

Section 61 of “ An Act concerning conveyances,” Laws of 1861, provides tbat “ every sale made by a vendor of goods and- chattels, in bis possession, or under bis control, and every assignment of goods and chattels, unless tbe same be accompanied by an immediate delivery, and followed by an actual and continuous change of possession of things sold or assigned, shall be conclusive evidence of fraud as against tbe creditors of tbe vendor, or tbe creditors of tbe person making such assignment, or subsequent purchasers in good faith.”

Section 66 of tbe same Act, providing tbat no mortgage of personal property shall be valid against any other person than tbe parties thereto, unless possession of the mortgaged property be delivered to tbe mortgagee is in fact embraced in section sixty-four, for a mortgage of personal property is legally an assignment thereof. There can be no difference in tbe character of the delivery required then, whether tbe property be sold absolutely, or assigned by mortgage.

And, indeed, tbe evident pmpose of both sections is tbe same; tbe prevention of tbe frauds which would necessarily result from tbe practice of permitting tbe right of property to be in one person, and tbe possession and all tbe indicia of tbe right of property being in another.

Debvery of possession of personal property, may be either actual or constructive, and it seems tbat an actual debvery is contemplated by tbe statute, unless, indeed, such delivery were impossible or extremely inconvenient, in which case a symbolical delivery would doubtless be sufficient. If property mortgaged could be transferred to the mortgagee by a mere constructive or symbolical delivery, where actual delivery can be readily made, practically these sections of the statute would be entirely nugatory, and then- object totally defeated. There being no means by which the public can asceitain whether personal property is mortgaged or not, except by the change of possession, and the person in possession, and exercising ownership over it, being presumed to be the owner, if after being mortgaged it were allowed to remain in the possession of the mortgagor, mortgage after mortgage might readily be placed upon- it; this being the very evil sought to be remedied by the statute, we think such a construction should be put upon it as will most effec-_ tually carry out its object. To accomplish this purpose, and to secure probity and fair dealing in transactions of this kind, the opportunities of fraud must be removed. There must not only be a transfer of the right of property, but the possession must accompany it. The authorities are certainly conflicting upon the question of what will constitute a delivery of possession, but we can find no case which goes to the length of holding that mere words are sufficient where a tradition of the property is possible.

In the case at bar no act was done which would indicate the intention of the parties, or to give notice to the world that a transfer of possession had taken place. The cattle were left where they were before the execution of the mortgage, and under the control and charge of the same herdsman. Had there been a change in the herdsman, that would have been an act evidencing the change of property, and would probably have been sufficient to have effected a delivery. But here, to all outward appearances, there was no change of property, or of the possession, when a delivery could easily have been made, and thus the mortgagor might have obtained credit upon the cattle, or sold them to another, after he had in fact parted with all his right by mortgage to the plaintiff.

It is well settled that a symbolical delivery merely is sufficient of ponderous articles of wbicli it would be a matter of great difficulty to mate an actual delivery, as tbe case put by Chancellor Kent of a column of granite, which by its weight and magnitude was not susceptible of any other delivery than that of the consent of the parties on the spot. But many of the Courts have gone further, and held that a symbolic or constructive delivery is sufficient where actual delivery is merely inconvenient. But such a rule, if adopted here, would destroy the entire efficacy of the statute, for parties would always find it convenient to prove the inconvenience of a delivery whenever the question was raised.

"Where the property is in the possession of a bailee, also, an actual delivery is unnecessary, because the vendor himself not having the possession, the only delivery which could be made would be to give an order for it, or deliver the receipt and obtain the recognition of the transaction by the bailee.

Thus it is said the “ taking a bill of parcels and an order from the vendor to a storekeeper for the goods, and giving and marking them with the initials of one’s name,” is a delivery. So, also, with the taking a bill of parcels, and the order on the warehouseman and paying the price.

And the mere communication of the vendor’s order on a wharfinger or warehouseman, for delivery, and assented to by him, passes the property to the vendee. In the case of Taxworth v. Moore, 9 Pick. 347, the vendor of a horse in the pos-_ session of a bailee, sold it, and ordered the bailee to deliver him to the vendee, and upon the request of the vendee, he continued to take charge of the horse as before the sale, and it was held to be a good delivery, even against the creditors of the vendor. But in all these cases the property was not in the possession of the vendor at the time of sale, for the possession of a bailee who has a special property in the thing bailed, cannot strictly be considered the possession of the bailor, and therefore the only delivery which could be made, as before suggested, was by an order on the bailee.

Í But in the case at bar, the cattle were in the possession and under the control of the mortgagor, for the herdsman was merely his servant or agent, having no property in the cattle, and whose possession was only for his master, the mortgagor. If Dean were a bailee, and not a mere servant, the delivery here would undoubtedly be sufficient under tlie authorities referred to, and also under the statute which only requires a delivery when the property is m the possession of the vendor or under Ms control.

"We can find no authority which would sustain a delivery of this kind where the property is in the charge of a servant, and is susceptible of actual delivery; but on the other hand, the case of Hurlburd v. Bogardus, 10 Cal. 519, is directly in-point against the appellant here. •

The judgment below must be affirmed.