E. MOORE and L. E. YATES v. GEORGE L. MURDOCK and H. B. POST, 26 Cal. 514

By the Court, Rhodes, J. The only point we can consider, is the alleged error of the Court below in overruling the appellant’s motion for a nonsuit. The other grounds of the motion for a new trial, were not specified, either as regards the insufficiency of the evidence or the errors in law, as is required by the statute (Acts of 1.863, p. 643), and therefore they should be disregarded by the Court below, and cannot be examined on appeal. (Wixon v. Bear River & A. W. M. Co. 24 Cal. 367; Walls v. Preston, 25 Cal. 59; Hutton v.

Reed, 25 Cal. 478.) The appellants insist that the law of this case was settled upon the previous appeal, but in this they are mistaken. The appeal was-from an order granting the defendants’motion for a new trial, and the Supreme Court say : “It seems that it was granted on the ground that the verdict was not sustained by the evidence. The granting of new trials, for such reasons, rests on the sound discretion of the Court, and we see no gross abuse of that discretion in the present case.

The order is therefore affirmed.” Such language is quite inappropriate to express the opinion that a nonsuit should have been granted. The point that “ upon the pleadings themselves the defendants were entitled to a nonsuit” (meaning probably a judgment) is not well taken.

The allegation of new matter in the answer, respecting the possession and pretended sale of the sheep—the property in controversy—the place where they were, and the persons who had charge of them are mere matters of evidence, from which the ultimate and issuable fact of the ownership of the sheep, by Forsman, at the time of the service of the attachment might be inferred; but treating them as amounting in the aggregate to such ultimate fact, the allegations of the replication that the sale was made to the plaintiffs in good faith and for a valuable consideration, and that the possession was delivered to them before the levying of the attachment, sufficiently put the alleged facts in issue.

The transaction between the respondents and Forsman amounted, as was properly found by the Court below, to a mortgage of the sheep by Foreman to the respondents, to secure them for the payment of the amount which they agreed to pay and did pay to Ryer on the note formerly given to him by Foreman, with the respondents as his sureties.

The instrument as set out in the findings concludes with the recital, “ this sale being made to secure the payment of said note.” Under the issues, it was necessary for the respondents to introduce evidence to prove the execution and consideration of the mortgage, the delivery of the possession of the sheep, and the actual and continued possession thereof by the mortgagees, prior to the levying of the attachment by the appellants.

The evidence offered was such that the Court was j ustified in finding the execution of the mortgage for a valuable consideration, and in holding that there had been such an immediate delivery, and actual and continued change of possession of the property in controversy, as would satisfy the Statute of Frauds.

The question as to whether the sale was made to hinder, delay or defraud the creditors of Foreman, whether the respondents had notice of the fraudulent intent, and whether there was a secret trust for the benefit of Foreman, created by the parties to the mortgage at the time of its execution, are questions of fact, and this Court will not disturb the action of the Court below and direct a nonsuit to be entered, unless the evidence was such that if those questions had been submitted to a.jury and the jury had found for respondents, the Court would set aside the verdict as contrary to the evidence. (Mateer v.

Brown, 1 Cal. 222; Rudd v. Davis, 3 Hill, 287; Stuart v. Simpson, 1 Wend. 376; Demper v. Souizer, 6 Wend. 436; Wilson v. Williams, 14 Wend. 146; Fort v. Collins, 21 Wend. 109; Jansen v. Acker, 23 Wend. 480.) Under that rule, and in view of the evidence in the cause, we would not be justified in ordering a nonsuit.

A demand of the property was not required to be made by the respondents before bringing suit, because at the time of its seizure by the Sheriff under the attachment the respondents were in possession and the demand would not give the officer any greater or other notice than was imparted by the possession of the respondents. It is thought that the sale is void because made on Sunday.

It is a sufficient answer to say that the statute of 1861 was not designed to prohibit the making of contracts, but the keeping open of a house or place of business on Sunday; that the statute has not prescribed as a penalty for a violation of the Act, that the contract made on Sunday shall., be void; and that this ground was not taken in the Court below on the motion for a nonsuit.

The appellants insist that the respondents, by denying to the Deputy Sheriff, who was about to levy the attachment upon the sheep, that Foreman owned them, and claiming that they had bought them and were in possession of them, misled the appellants, inducing them to believe that Foreman had no interest in the sheep. We think this point is not included in any of the grounds of the motion for the nonsuit.

But if it is included in those grounds, the point cannot assist the appellants in this action, for whether the instrument executed by Foreman to the respondents was a bill of sale or a mortgage, the respondents were entitled to the possession under the contract. The mortgagee of chattels holds the legal title of the mortgaged property (2 Hilliard on Mort. 277, 426; Hackett v. Manlove, 14 Cal. 89), and the officer holding an attachment against the property of the mortgagor, is not authorized to take the property out of the possession of the mortgagee.

The suppression of the fact that the transaction amounted to a mortgage, if it prevented the officer in any manner from acting, simply induced him not to" do what he had no right to do —that is, to take possession of the sheep. It will be observed that the respondents had been served with a garnishment process by the judgment creditor, and' if they answered untruly the law furnishes a remedy.

Judgment was entered for the value of the sheep, and that sum exceeded the amount of the principal and interest of the debt intended to be secured by the mortgage; but we are not called on to determine whether the judgment was entered for the proper sum, for the appellants contend that the respondents, by bringing their suit in the present form, must recover the whole sum sued for—the value of the sheep—or nothing. Judgment affirmed. Mr. Justice Sawyer expressed no opinion.