James v. Fulkerth

7 P. 768, 2 Cal. Unrep. 524, 1885 Cal. LEXIS 848

Opinion

FOOTE, C.

Action of claim and delivery for a herd of cattle. There was no conflict of evidence in the case; and it does not appear from it that there was such an immediate delivery and actual and continuous change of possession of the property in controversy, from the vendor to the vendees, as will satisfy the provisions of section 3440, Civil Code. The custody of the herd of cattle remained in the same person after as before the sale, and before they were seized in this action by the sheriff they had not been removed from the land of the vendor, where they were grazing when sold. We are therefore of opinion that the judgment and order of the court below should be affirmed.

We concur: Belcher, C. C.; Searls, C.

By the COURT.—For the reasons given in the foregoing opinion the judgment and order are affirmed.