Norton, J. concurring.
This is an action to recover the possession or value of one thousand and eighty-nine bales of hay, of which the plaintiffs claim to be the owners and entitled to the possession, and which are alleged to have been unlawfully taken and detained from them by the defendant. It arises upon the following facts : Some time in 1859, one Barnes and' one Brown entered into a contract for the working of a farm in Yolo county upon shares—Brown to furnish the land, the teams and the seed, and Barnes to sow and harvest the grain and cut the hay—the grain and hay, when harvested, to be equally divided between them. On the first of October, 1859, after the hay was cut and the grain partially harvested, Barnes executed to the plaintiffs his promissory note for three thousand two hundred and eighty-six dollars, payable thirty days after date, with interest, and at the same time executed to them, as security for the payment of the note, an instrument pledging his undivided half interest in certain wheat, which, it would seem, was then in the possession of the plaintiffs ; also, in that which he had on the farm, estimated at about two thousand sacks; also, in certain hay stored in the Sitka Ice Company’s house in Sacramento, and in the balance of the hay on the farm, which was to be gathered in, estimated at about two hundred tons. A delivery of- possession of the hay and grain did not accompany the execution of this instrument; but on the eighth of the month, upon a written order of Barnes, such possession was delivered by Brown of the hay and grain on the farm, and by a like verbal order given on the same day, possession was.also delivered of the-hay in the ice house. A few days subsequently, and whilst the plaintiffs were in the possession of the property, the defendant, who was Sheriff of Sacramento county, under certain executions placed in his hands against the property of Barnes, seized the hay in the Sitka ice house, and about the same time the Sheriff of Yolo county, under like executions against Barnes, seized the hay on the farm. By an agreement between *621the parties, the hay thus seized in Yolo was taken to Sacramento and placed in the Sitka ice house, and there subjected to the seizure of the Sheriff of Sacramento county. The removal of the hay to Sacramento was for the purpose of preserving it; and the arrangement was to prevent such removal from affecting the respective rights of the parties to its possession. It is for the hay originally in the ice house, and the hay thus removed to it, that the present action is brought. The defendant justifies the seizure of the hay under the executions in question, alleging it was at the time the property of Barnes, the execution debtor, and that the “ pretended claim and ownership ” of the plaintiffs was “ fraudulent and void— that it is an attempt on their part to hinder, delay and defraud the creditors ” of Barnes.
On the trial, special issues were submitted to the jury, and they found that the hay was delivered to the plaintiffs under "the order of Barnes, and that they took such possession of the same as the nature of the property permitted, and retained such possession until the seizure by the defendant; and also the amount and value of the property; but that there had been no division of the hay on the farm, so as to give to Barnes his specific share. The judgments upon which the executions in the hands of the defendant were issued were not produced, and the evidence offered to show that the order of Barnes for the delivery of possession was executed to hinder, delay and defraud his creditors, was, upon the objection of the plaintiffs, excluded. Upon the findings, judgment was rendered for the plaintiffs, and a new trial having been refused, the defendant brings his appeal; and for a reversal of the judgment contends: 1st, that the plaintiffs have no such title or interest in the hay as to enable them to sustain the action for its possession; and 2d, that the Court erred in excluding the evidence offered of the alleged fraudulent intent of Barnes. We do not think either of these positions can be maintained.
1st. By the agreement between Brown and Barnes for working the farm on shares, they became tenants in common of the grain and hay until a division was made. (Bernal v. Hovious, 17 Cal. 545.) Each was entitled to the possession of the whole as against all persons but his cotenant, and could maintain an action for its *622recovery. From the fact of a common ownership of the hay on the farm, the order of Barnes to deliver possession to the plaintiffs only authorized a possession in connection with Brown ; but the latter having consented to a delivery of the sole possession to the plaintiffs, it is not perceived that the creditors of Barnes have any ground of complaint. By the order of Barnes and consent of Brown, the plaintiffs were entitled to hold the whole crop, to the exclusion of third parties. The finding of the jury was only that the hay on the farm was undivided. The hay in the Sitka ice house was the separate property of Barnes, having, previously to his agreement with the plaintiffs, been set apart to him.
2d. The evidence offered, that Barnes intended by his order to hinder, delay and defraud his creditors, was properly excluded. Ho foundation was laid for the introduction of any evidence of this nature, even if admissible in any event under the defective allegations of the answer. It was insufficient to produce the executions alone; it was nécessary to produce also the judgments upon which those executions were issued. The law is clear on this point. In the recent case of Bickerstaff v. Doub, (19 Cal. 112) we gave the rule on this subject. “ It is well settled,” we there said, “ that an execution is sufficient justification to the Sheriff for the seizure of the property of the debtor; and it is immaterial whether the property be in the actual possession of the debtor, or in the possession of an agent, or parties holding it for his benefit. But if the property be in the possession of a stranger to the writ, claiming it as his own by virtue of a transfer to him from the debtor," which would prevent the latter himself from retaking the possession, the officer must produce not only the writ, but the judgment which authorizes its issuance. A sale of-property by a debtor, even if void as against creditors, is good as between himself and his vendee, and all the world except his creditors. And such sale cannot be attacked by a creditor, merely from the fact that he is a creditor, but only when he has a judgment establishing his debt, and an execution issued thereon, or has some process regularly issued, as in the case of attachment, authorizing a seizure of the property.” (See also, Thornburgh v. Hand, 7 Cal. 554 ; and Paige v. O'Neal, 12 Cal.) The same rule prevails whether the property seized be *623claimed under a sale or under a pledge from the debtor. The test is this: Is the stranger’s right to the possession such as would prevent the debtor himself from retaking the possession ? If it be such, the officer must produce, not merely the writ, but the judgment on which it is based.
Judgment affirmed.