Bunting v. Saltz

Citations

• 84 Cal. 168
• 24 P. 167
• 1890 Cal. LEXIS 781

Syllabus

<p>Statute of Frauds — Sale of Personal Property — Actual and Continued Change of Possession. — A transfer of personal property, not accompanied by an immediate delivery, and an actual and continued change of possession, is conclusively presumed to he fraudulent, and therefore void as against the creditors of the vendor.</p> <p>Id. — Definition of “Actual.”—The word “actual,” as applied to the change of possession required by section 3440 of the Civil Code, means existing in act, and truly and absolutely so; really acted or acting; carried out; opposed to potential, possible, virtual, or theoretical.</p> <p>Id.—Insufficient Evidence of Change of Possession — Attachment of Farm-wagon Retained on Homestead—Agency.—The evidence is insufficient to show an actual and continued change of possession of a farm-wagon attached by a creditor of the vendor, if it appears that the wagon was retained upon a farm properly claimed as a homestead by the vendor’s wife, and upon which the family of the vendor continued to reside, after the wagon had been sold to the mother of the vendor, who was a non-resident of the state, though it may appear that the vendor had ceased farming and engaged in other business, .and that his wife and her father were the authorized agents of his mother to act for her in regard to the property sold to her.</p> <p>Id. —Authority to Take Possession. —Such transaction could amount to no more than an authority to the vendee to take actual possession of the farm-wagea, which she failed to do.</p> <p>Id__Invalid Conveyance of Homestead. — A deed of the husband, in</p> <p>which the wife does not join, purporting to convey the homestead to a vendee, to whom he has sold a farm-wagon situated thereon, is wholly inoperative as a conveyance of the homestead, and does not constitute any evidence of a change of possession of the premises or of the farm-wagon.</p> <p>Id. — Change of Indicia of Ownership. — There is no sufficient change of possession when the property ap