#### Grady v. Baker.

. 1. sale of-merchandise: change of possession: vendor employed as salesman : not per se evidence of fraud. After the sale of goods, and an actual and notorious change of possession, the employment of the vendor in the capacity of mere salesman or clerk, is not per se, conclusive evidence of .. fraud.

-'2. vendee: may be in possession by agent: vendor may be such agent. The vendee, under section 2024 of the Oivil Code of this territory, need not remain in personal possession, but may be so by agent; and such agent may be the seller of the property, "if the possession be such as to advise the creditors of the change in the title of the property.”

*Appeal from the District Court of TanJeton Comity.*

Michael Grady was doing business as a merchant tailor at the city of Yankton. Flis stock was mortgaged to a creditor for $1,000, and he owed plaintiff, Kobert G. Grady, his son, the sum of $500. On January 26, 1881, plaintiff, Bo.bert G. Grady, purchased the stock of goods from his father for $1,987.11, assumed *296tlie $1,000 mortgage, cancelled his father’s indebtedness of $500, and paid over to his father in cash the balance of $487.11 to cover the value of the stock. The son then took down his father’s old sign and erected his own as “ Robert G. Grady, Merchant Tailor,” took a new lease of the store in his own name, and re-employe'.! part of the former workmen, who had been paid off and discharged by Michael Grady at the time of the sale. Plaintiff also employed his father as “ cutter ” and salesman in the shop at $75 per month, and Mrs. Cary, his sister, as book keeper, and one Doyle, who worked in the shop and had charge of the general business, and . all moneys collected and paid out. The goods in the shop were attached by creditors under four warrants of attachment, between February 7 and 11; 1881, and plaintiff brings claim and delivery against the sheriff to recover possession. Jury trial was had and verdict for plaintiff for possession and $121.65 damages. Defendant appeals. On the trial the .defendant requested the following charge to the jury: “If the jury shall find that Michael-Grady re- “ tained control of the goods alleged to have been sold, either con- “ jointly with the purchaser or his agents, or as agent of thevpur- “ chaser, there is no actual and continued change of possession ■“ within the meaning of the statute, such as will prevent the pré^ “ sumption of fraudwhich was refused, and the refusal is assigned as error. The other facts appear in the opinion.

*O. J. B. Harris*and *L. B.*French, for appellant.

Points and authorities in brief:

Every transfer of personal property unaccompanied by an immediate delivery, and followed by an actual and continual change of possession, is conclusively presumed to be fraudulent and void as against creditors or incumbrancers in good faith: Sec. 2024, Revised Codes, 466; *Watson v.*Rogers, 53 Cal., 402; *Regli v. MoOhtre,*47 Cal., 612; *Woods v. Bugbey,*29 Cal., 467.

*297The Court erred in refusing to charge as requested by defendant. If the said Michael Grady retained possession or control of' the goods alleged to have been sold either by himself or conjointly with another, then there was no actual and continued change of possession within the meaning of the statute: *Allen v. Massey,*17 Wall., 353; *Glafilvn v.*Rosenberg, 42 Mo., 439; *Osen r. Sherman,*27 Wis., 501; *Van Pelt v. Hitler,*10 Cal., 394; *Weil v. Paul,*22 Cal., 493; *Miller v. Gorman,*69 Pa. St., 134.

Change of possession must be open and notorious so as to be apparent to all the world: *Engles v. Marshal,*19 Cal., 329; *Godeheaux v. Mulford,*26 Cal., 326; *Woods v. Bugbey,*29 Cal., 472; *Lay v. JVeville,*25 Cal., 553; *Allen v. Massey,*17 Wall., 353; *Olafidin v. Rosenberg,*42 Mo., 439.

*Bartlett Trvpf,*for respondent.

No brief on file.

Edgerton, C. J.

This is an action brought by the plaintiff to recover possession of certain goods attached by the defendant, as sheriff, at the instance of certain creditors of Michael Grady. The plaintiff claims to have bought the goods of Michael Grady, and to have paid a full consideration therefor. The creditors claim that the sale was fraudulent and void under section 2024 of the Civil Code.

It is not contended that the sale was not *bona fide*in fact, and for a full and adequate consideration; but it is contended that there was -no such actual and continued change of possession as took the case out of the statute.

There are three assignments of error, all relating to the charge of the Court. The charge of the Court is not set forth in the record, and this court has no knowledge of what such charge was, except as to the fragments excepted to by counsel.

*298The first exception is to that portion of the charge, given upon the Judge’s own motion, in which he • announces the rule that a vendee, under our statute, need not remain in actual possession, but may do so by agent, and such agent may be the seller of the property, “ *if the possession be such as to advise the creditors of the change in the title of the*property.”

This charge, with the qualification and limitation attached, as to the public, open and notorious character of the possession, states the law accurately.

The statute does not mean, that if, by any accident or chance, the property purchased shall come into the hands of the original owner, the creditors of such former owner may seize the property to the injury of *bona ficle*owners and purchasers. It does not mean that the purchaser of a stock of goods may not employ the former owner as a mere clerk or salesman. It means that the sale shall be open and public, that the world may be apprised of the change of ownership.

The change of possession must l^e actual and continued, and not subject to some secret trust between the seller and buyer. If such is the character of the possession, the statute is satisfied and the sale will not be avoided.

“ The employment of the vendor by the vendee after the sale, “ may be proved as a fact tending to show that there has been no “ actual or continued change of possession; but when proved it “ does not become conclusive of the question, but only an element “ of proof to be weighed by the jury.

“ After a sale of goods and chattels, and an actual change of “ possession, the employment of the vendor by the vendee, in the “ capacity of a clerk or salesman, is not, *per se,*a conclusive evi- “ dence of fraud which admits of no explanation. After a sale of “ goods and chattels in good faith, and an actual and notorious *299change of possesion, the employment of the vendor by the ven-u dee as a mere clerk or salesman, is not a fraud which vitiates the *(i*sale, because the change of possession is not continued: 26 Cali- “ fornia, SIT”

The whole law of the case is stated carefully and clearly in the fragments of the charge before this court. The employment of Michael Grady by the plaintiff after the sale, was a fact to go to the jury with all the other facts, to be by them considered upon the question of whether there was an immediate delivery, and an actual and continued change of possession.

The employment of Michael Grady was not a fraud, *per se,*that could not be explained. It is the fact, that immediately after the sale the former owner is found in such situation of apparent ownership, which is to go to the jury with the other facts, to aid them in determining whether he is such clerk and salesman, or still owner in fact, of such property.

The language of the charge given, is nearly *verbatim*that used by the best adjudicated cases: *Stevens v. Irwin,*15 California, 506; *Godchaux v. Mulford,*26 California, 316; *Ford v. Chambers,*28 California, 13; *Warner v. Carleton,*22 Illinois, 424; *Stanley v. Robbins,*36 Vermont, 423.

The request asked by the defendant, if good law in any case, was not applicable to the facts of this case, so far as the facts are before the court; and again, it no where appears, if such charge had been applicable, that it had not already been substantially given, either of which would be good grounds for refusing it.

It appearing that the case was fairly submitted to the jury, upon the facts, the judgment should be,

Affirmed.

All the Justices concurring.