Amador ledger., 1908-04-03
SUPERIOR COURT DECISION
In Case of.Amador Bank VS.. e. c.
Rust and w. N penry
In the superior court of the county


dauts.
This is an action to foreclose a
chattel mortgage on printing press.
The mortgage sought to be foi eclosed
was given by the defendant, r.. g..
Rust to plaintiff OIL the 9Th day OF
May, 1903, to secure the payment OF
a eltain promissory note Of said date
for the sum of S332. 40. The plaintiff
held prior mortgage OH the same
property given Is by the said Rust
Oh May 9th, 1901 which prior mort
gage was taken up aud satisfied by
the mortgage of dale May 5, 1900.
The defendant, William M. Penry
claims title to tile said printing press
under bill of sale given him by r..
q. Rust on the 9th day of May, 1903.
This hill of sale was recorded on
November 6, 1903 At the time of the
giving of the second mortgage, to-wlt:
May 9th, 1908, the plaintiff had no
knowledge that any bill Of sale had
been executed aud had received no
notice sufficient to place it upon
inquiry. At the time Of the making
OF tho second mortgage and for long
time prior thereto Rust was the editor
and publisher of the Amadur Dis
patch, and the said prinlng press was
used by him Ill the printing establish
ment Of the said AmHdor Dispatch,
and this was the only printiDg&press
owned by Il. &. Rust III said establish.
ment.
The vital question in The case, in
Judgment, is the claim made by
plaintiff, that the sale to Peury is
void as against it, because not &C
companied by an Immediate delivery
aud followed by an actual and con.
tinued change of possession, as re-
CURED by Section 34l0 of the Civil
Code. Said section provides as fol-
lows: Any transfer OF personal
property, other than thing in action
XXXXX is conclusively presumed,
1t made by person having at the
time the possession or control of the
property, and not accompanied by
an actual delivery, and followed by
au actual and continued change OF
possession OF the things transferred,
10 be fraudulent, and therefore void,
against those who are his creditors
while he remains in possession, X
and against purchasers or incum-
berances in good faith subsequent to
the transfer. Xxx X"
On May 9th, 1903, the date of the
bill of sale and tor several years prior
thereto. Rust was conducting the
Amador Dispatch and during the time
he was conducting the Dispatch be
had lease from the owner, VIM. M.
Perry by which upon the payment Oh
certain sums at different times be
would be entitled to decd, but if
he failed to keep his part of the con-
tract Penny was entitled to take
possession Of the property and the
payments made by Rust we're to be
applied as payments of rent.
The said printing press was the
property of Rust and WAS brought in :
to the printing establishment by said
Rust and used by him III the bust
ness. After the sale to Perry he CON
tinued to work there the same as be-
fore No change was made that would
give notice to the world that sale
had been made ut the printing press.
The copies If the Amador Dispatch
introduced in evidence snow that on
May Sth, 1908, the name of II T. kust
appeared at9the head of the editor ial
column as editor and the same at
pears in the copy of the issue received
IN evidence of date of MAY 18th, 1903.
The issue of May 5th. 1908, shows the
name of Fl. G. Rust as editor and
publisher and w. M. Penny as bust
ness manager. During all the time
from the making of the bill OF sale
OH May 9th, 1908, down to the eXeCu-
ton of the mortgage on May 9TH,
1908, no change of possession took
place as is contemplated by section
3440 of the Civil Code.
The change of possession that will
protect the vendee of personal pro
perty against the claims of creditors,
incumb eranGes aud purchasers in
good faith, must be open and carry
ing with it all the marks and in
dications of ownership by the veudee.
1t must be such as to give notice to
the world OF the claims Of the new
owner He must, in other words, be
in the usual relation of the property
which the ownersEot the goods occupy
to their property, jStevens VS.. irwin,
10 Cal. SOC. There must he such
change of The apparent custody Of the
property as to put one dealing with
the vendor, with respect to it, upon
inquiry. or such at least as might
suggest change of ownership
(Hesthal VS. Myles, % Cal. 623. 62G.
In Cahoon VS. Marshal, % Cal. 2Ol, the
supreme court said: "What con
stitutes an actual change of posses
sion of personal property as distn-
Guished from that which by mere
intendment of law follows the transfer
of title, is not difficult of solution.
1T IS an open, visible change, maui
tested by such outward signs as
render it evident that the possession
of the vendor has wholly ceased. -
(See also Bell VS. Mcclellan, 81 Cal.
2H3 }.
The evidence in this case does not
show sufficient delivery aud con
tinued change of possession of the
printing press within the meaning OF
the rule as annunciated in the cnsse
of Stevens VS. Irwin, supra. which
rule as therein announced has been