McKay v. Clapp

¶1i. vendor possession. ‘ I. There is no controversy about the indebtedness from Clapp to McKay. It was in amount something over $400. The grain in controversy had been threshed, and Clapp left it in that condition. A few days before he left he contracted to sell it to Evans, who *419was a dealer in grain at Manchester, -and received part payment therefor. Clapp was to deliver the grain, and payment for it was to be completed when it should be delivered, weighed, and the quantity ascertained. Before Clapp went away, and upon the eve of his departure, he told one Wilson that he had sold the grain to Evans, and Wilson agreed to deliver it to Evans.

¶2Section 1923 of the Code provides that “No sale or mortgage of personal property, where the vendor or mortgagor retains actual possession thereof, is valid against existing creditors, or subsequent purchasers without notice, unless a written instrument conveying the same is executed, acknowledged like conveyances of real estate, and filed for record with the recorder of the county where the holder of the property resides.”

¶3It is claimed that there was a delivery of the property from Clapp to Wilson, and that Wilson received the possession for Evans. We do not think there was any evidence to justify such a conclusion. What is meant by the statute is that there must be an actual change of possession. In this case the grain was undisturbed, and Clapp merely made Wilson his agent to deliver the possession to Evans.

¶4II. It is next insisted that McKay, or the sheriff who levied the writ, had notice of the sale to Evans before the levy was made.

¶5There is a conflict in the evidence on this question. We think the court was justified in finding from the. evidence that the sheriff was on the premises and had the property under his control, by virtue of the writ, at the time notice was given.

¶6Affirmed.