CHAFFIN et als. v. DOUB, Sheriff, 14 Cal. 384

Baldwin, J. delivered the opinion of the Court—Cope, J. concurring. One Buckelew mortgaged certain hay to the plaintiffs to secure debts due them for work in mowing, etc. The hay was grown and lying in three fields of considerable extent. The plaintiffs, at the time of the mortgage, boarded with Buckelew, who lived on the farm; but, after the mortgage, they ceased to board with him. The fields were inclosed, and were separated by the inclosure from the dwelling-house of Buckelew. Buckelew did not go into the fields after this. The hay lay in swaths, cocks, windrows, and some of it was in stacks.

At the time of the mortgage, Buckelew took some of the hay in his arms and gave it to the plaintiffs, or one of them, as a symbol of possession. The men continued to work on the hay, gathering and stacking it up, until the levy by the defendant upon it by attachment as the property of Buckelew. This levy was some eight days after the execution of the mortgage. Upon this testimony, as to the delivery, the Court below held it insufficient, and directed a verdict for the defendant, which was given accordingly; and plaintiffs now appeal from the judgment.

The statute, (Wood’s Dig. 107, Art. 405,) providing “that no mortgage of personal property, hereafter made, shall be valid against any other person than the parties thereto, unless the possession of the mortgaged property be delivered to, and retained by, the mortgagee,” is supposed to uphold the ruling of the District Judge. The provision is not dissimilar to the 403d Art. in the same statute. This case is wholly different, in fact and principle, from Richards v. Schroeder, (10 Cal. 434.) In that case, no change of possession of the brick was contemplated. The case is more like the case of Pacheco v.

Hunsacker, at the last term. We think that the statutory rule on this subject was not intended to be more strict than that held by the English and United States Courts as the proper construction of the Statute of Frauds. (29 Ch. 11.) The words of the rule are not to receive an unreasonable construction. Although delivery be requisite in cases of sales, yet, what will constitute a delivery, must depend, in some measure, upon the character of the

article sold and the peculiar circumstances of the case. Mr. Parsons on Contracts, (Vol. 2, p. 323,) says: “It may be said, in general, that a delivery must be a transfer of possession and control made by the seller with the purpose and effect of putting the goods out of his hands. This is a sufficient delivery, whatever its form.

Hence, it may be constructive as by delivering the key of a warehouse, or making an entry in the books of a warehouse-keeper, or delivery with an indorsement of a bill of lading, or even of a receipt, or without even such, when the goods are bulky and difficult of access, as a quantity of timber floating in a boom, or a mass of granite, or a large stack of hay.” Kent, (Com. 4, p. 500,) holds that the consent of the parties upon the spot is a sufficient possession of a column of granite, which, by its weight and magnitude, was not susceptible of any other delivery, and was taken by the eyes and declared intention.

But this case is much stronger for Appellant. Here, the hay was not yet in a condition for removal, but scattered over a large area—some one hundred and fifty acres—necessarily requiring time to gather it up and stack it, for the purpose of preserving and getting it into a condition for use. If an actual immediate delivery were construed to mean a removal immediately from the premises, the requirement of the statute in such cases would be impossible of performance.

But, if such removal be necessary at all—the vendees being in possession of the fields —the Court erred in assuming, as a matter of law, that a delay of eight days was too long to enable the plaintiffs to gather up and remove the hay from the fields of Buckelew. But we do not decide that this removal, under the circumstances of this case, was necessary for the vesting of title in the plaintiffs as against the creditors of Buckelew. Judgment reversed, and cause remanded.