Grady v. Baker

• Decision Date: 12 May 1884
• Parties: Grady v. Baker.
• Court: South Dakota Supreme Court

19 N.W. 417

3 Dak. 296

Grady

v.Baker.

Supreme Court of the Territory of Dakota.

Filed May 12, 1884.

Bartlett Tripp, for respondent. L. B. French and C. B. J. Harris, for appellant.

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.

The first exception is to that portion of the charge, given upon the judge's own motion, in which he announces the rule that the 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 change, 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 fide 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 be 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...