Cook v. Mann
| Decision Date | 01 December 1881 |
| Citation | 6 Colo. 21 |
| Parties | COOK v. MANN. |
| Court | Colorado Supreme Court |
Error to District Court of Arapahoe County.
THE facts are sufficiently stated in the opinion.
Messrs HARDENBROOK, LEMAN and JASSETT, for plaintiff in error.
Messrs BROWNE and PUTNAM, for defendant in error.
Counsel for the plaintiff in error do not question the bona fides of the sale by Haywood to Mann. They charge no fraud in fact but fraud in law.
The contention is that there was no such delivery to Mann of the goods sold, and no such 'actual and continued change of possession,' as are required by the statute of frauds. Section 14 of the statute provides that '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 an immediate delivery, and be followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor or the creditors of the person making such assignment or subsequent purchasers in good faith, and this presumption shall be conclusive.' General Laws, sec. 1264.
Upon the question of 'the delivery' and the actual and continued change of possession required by the statute, the books are full of decisions. We do not propose to review them. It is sufficient for the purposes of this case to say: (1) When the subject of the sale does not reasonably admit of an actual delivery, it is sufficient if the vendor assume the control and dominion of the property so as reasonably to indicate to all concerned, the change of ownership. The case of goods in a warehouse, brick in a kiln, and lumber in a raft, are familiar illustrations where removal is not impossible, but unusual, and out of the regular course of trade.
In such cases, if there is a full surrender upon the part of the vendor, and a full assumption upon the part of the vendee, of the control and dominion of the subject of the sale, the delivery is sufficient.
(2) The vendee must take the actual possession, and the possession must be open, notorious and unequivocal, such as to apprise the community, or those who are accustomed to deal with the party, that the goods have changed hands, and that the title has passed out of the seller and into the purchaser.
This must be determined by the vendee using the usual marks or indicia of ownership and occupying that relation to the thing sold which owners of property generally sustain to their own property.
(3) The possession must be exclusive of the vendor. A concurrent or joint possession is not admissible. McKibben v. Martin, 64 Penn. 352; Claflin et al. v. Rosenberg et al. 42 Mo. 439, and cases cited.
We find no difficulty in saying in this case that the requirements of the...
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Fish v. East
...and vendee is not admissible. The possession must be exclusive of the vendor. Donovan v. Gathe, 3 Colo.App. 151, 154, 32 P. 436; Cook v. Mann, 6 Colo. 21; Wilcox v. Jackson, 7 Colo. 521, 4 P. 966; Bassinger v. Spangler, As far back as 1936 counsel for the Mines Company was considering possi......
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Sweetland v. Oakley State Bank
...to deal with the party, that the goods have changed hands, and that the title has passed out of the seller into the purchaser.' (Cook v. Mann, 6 Colo. 21.)" Cameron v. Calberg, 3 Cal. Unrep. 637, 31 P. 530, the vendee received a bill of sale and went to get the mare, the subject of the sale......
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Allen v. Steiger
... ... legal significance. Bassinger v. Spangler, 9 Colo. 175, 10 P ... 809; Sweeney v. Coe, 12 Colo. 485, 21 P. 705. In Cook v ... Mann, 6 Colo. 21, it is said with reference ... [31 P. 228] ... to section 2027: 'The vendee must take the actual ... possession, and ... ...
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Austin v. Terry
...it was incumbent upon him to show that the property was the property of Mrs. Hager and not of the estate. Second. As announced in Cook v. Mann, 6 Colo. 21: 'The must take actual possession and the possession must be open, notorious and unequivocal, such as to apprise the community or those ......