(dissenting). I am compelled to differ from the majority of the court in this case. The case is one of peculiar hardship, for there is no question of fraudulent intent, or fraud in fact; still, in my view of the evidence, it is a case which is governed by the statute concerning fraudulent conveyances, as passed by the legislature of this territory, which, wisely determining to avoid the conflicting authorities upon this question, declared that the presumption of fraud was conclusive, as to creditors and purchasers in good faith, when a sale of personal property was not followed by an imo mediate delivery, and an actual and continued change of possession.
While I do not dispute the rules of law stated in the prevailing opinion, I doubt that they control this case. There cannot always be a manual delivery, or personal and definite possession, of property. The very nature of certain classes of property prevents that; and there can be no force in the rule of law that would seek to forbid the vendor from ever having the possession of the property, even as the agent of the vendee, or as his bailee for hire. But the delivery of the property, however indefinite it may be, must be a delivery to the vendee, and must be a breaking of the possession of the vendee, and must be a breaking up of the possession of the vendor; and the possession (to quote the opinion cited by the learned chief justice in Godchaux v. Mulford) “must be continuous; not taken to be surrendered back again; not formal, but substantial.” In this case there *137was but a formal delivery, if indeed there was delivery at all, to the vendee. If there ever was possession in the vendee at all, it was “ taken to be surrendered back again ” immediately to the vendor. The possession of the property, however definite or indefinite, was in the vendor, and according to the testimony of the plaintiff herself, it remained in the vendor. It is true, the brand on the horses was changed, hut it was not vented, and the brand of the plaintiff was not placed on them for years after the sale.
It is my opinion that the testimony of the plaintiff shows that there was no actual, “substantial” change of possession or immediate delivery of the property. That testimony is brief, and is as follows, in full: —
“Am plaintiff in this action. Know the property described in the complaint. Bought it in the fall of 1881. Took a bill of sale of it, and had it in my possession. The signature of it is in the handwriting of* Robert Kirkpatrick. I paid twelve hundred dollars for the property. Bought the horses of the Kirkpatricks. At the time I bought them they were driven into a corral with a lot of other horses. The horses I bought were shown to me; the price for each one named. I took those which suited me, and they were then driven or turned out on the range near by within an hour afterwards. Left the horses in charge of the Kirkpatricks, and went to Santa Barbara, ^ California, to spend the winter. The horses' were cared for by the Kirkpatricks up to some time in 1884. In that year I received a letter from the Kirkpatricks, informing me that they were intending to make an assignment for the benefit of their creditors, and that there might be danger to my horses, as they were not then branded. I then had them branded with the ‘ apple ’ brand which my sister had caused to be made for me. After that I made Mr. Monroe Mann my agent to look after my horses, but he was not prepared to take *138care of them, and Mr. Robert Kirkpatrick has had almost the entire control of said horses until they were levied on by the sheriff, and has used them and worked some of them; and Mr. Kirkpatrick has had the most of the care and control of said horses all the time. My reason for not branding the horses at the time of the purchase of them by me from the Kirkpatricks was that I thought it very cruel to do so. In April, 1882, when I came back, I saw.the horses nearly every day. In September, 1882,1 went to Lynn, Massachusetts, and remained there nearly two years. During that time Robert Kirkpatrick had charge of the horses for me. At the time I bought the horses they were branded with a ‘K’ on the left shoulder, and they were vented with a straight bar under the ‘ K.’ ”
Lf there was a substantial change of possession, as evidenced by the statement of the plaintiff, it would be difficult to imagine any case which would come within the statute relating to fraudulent conveyances. The learned chief justice cites with approval the following: “ The delivery must be made of the property; the vendee must take actual possession; that possession must 'be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee.” In this case, was the possession “unequivocal, carrying with it the usual marks and indications of ownership by the vendee”?
There never was any delivery of any kind. The vendee never had the horses in her actual possession for one moment, and the constructive possession by the vendee, if any there was, cannot be called a “’substantial ” or “ unequivocal ” possession; it was “taken merely to be surrendered back again.” The horses were in the possession of the vendor before they were driven to the corral; they were in his possession in the corral; they were driven out of the corral;, and, in the words of the *139plaintiff, they were turned out on the range, and the vendors “had the care and control of them all the time.”
So much for the possession. What change was there which would “give evidence to the world of the claim of the new' owner”? 'They were in the care and control of the vendor; they were on the same range that they had occupied before the sale (which in this country is no slight evidence); they were never out of the possession of their former owner. The only circumstance evidencing a change was the addition of the bar to the “K” brand. This was not the “usual mark of ownership of the vendee ”; and it did not “ give evidence to the world of the claims of the new owner.” The brand “K” writh a straight bar was the brand of no one. It was certainly not the brand of the plaintiff. Her brand was the “apple” brand. It was not even venting of the vendors’ brand, which might have been prima facie evidence of a change of ownership, and thus, perhaps, notice to the world “ of the claims of the new owner.” Section 113, page 426, Revised Statutes of Montana, provides that the venting of “ such original brand shall be prima facie evidence of sale or transfer”; and that section provides what shall be considered a “vent brand”; and the straight bar is not one of the modes of venting an original brand. It is true, the plaintiff testifies that she did not have the horses branded, because she thought it very cruel to do so; but it is doubtful that such a tender sentiment would excuse the performance of an act which, in this country, would be some evidence of the “ claims of the new owner,” especially when that sentiment did not prevent her from assenting to the branding with the straight bar at the time of the sale, or to the branding with the “apple” brand when she was warned of the assignment by the vendors for the benefit of their creditors.
To briefly state the points I would make: I am of *140the opinion that the expression “immediate delivery, and actual and continuous change of possession,” must be interpreted reasonably and fairly; that where an actual delivery cannot be had, — where personal possession cannot be had, — the delivery and the possession may be constructive; but that constructive possession must be as complete as possible under the circumstances. I am also of the opinion that the character of the delivery and possession must depend upon the kind of chattel sold, and that it therefore may be indefinite; but however definite or indefinite the delivery and possession may be, it must be a delivery to the vendee, it must be the possession of the vendee. And I cannot agree with the learned chief justice, either as to the statement of the fact or as to the statement of law, in that portion of his opinion which reads as follows: “The appellant bought them in October, 1881, and spent the winter following in California, and left them, not in the possession of the Kirkpatricks, but on the range, in the possession of no one, but in the charge of her vendors.” As a question of law, it is impossible to conceive of personal property being “in the possession of no one,” unless it is lost; as a question of fact, the plaintiff says, “Mr. Kirkpatrick has had most of the care and control of said horses all the time”; and again, “I left the horses in charge of the Kirkpatricks, and went to Santa Barbara.” Prior to and at the time of the sale, the horses were in the constructive possession of the vendors; while in the corral, they were in the actual possession of the vendors; immediately thereafter they were left in the “ charge,” in the “care and control,” of the vendors; and they were, therefore, again in the at least constructive possession of the vendors; for not one moment were they in the possession of the vendee, and upon no occasion did she perform any act which would give evidence, to the nearest possible and most careful observer, that she was “ the new owner ” of the horses.
*141The cases of Stevens v. Irwin, 15 Cal. 503, and Godchaux v. Mulford, 26 Cal. 325, so much relied upon in the prevailing opinion, seem to be authority for this dissenting opinion; and that seems to be the conclusion of the supreme court of California in Woods v. Bugbey, 29 Cal. 467. In the first opinion delivered in the last cited case the court say (page 473), commenting on the former cases: “ In no case that we are aware of has the supreme court of this state laid down a rule requiring less than that the purchaser must have that possession which places him in the relation to the property which owners usually are to the like kind of property.” And again, in the opinion delivered on the rehearing, the court say, commenting on the same cases (page 475): “The plaintiff's counsel is quite mistaken in supposing that we overruled Godchaux v. Mulford, ex necessitate, by anything said in our opinion in this case. In that case it is distinctly held that the vendor cannot he allowed to remain in the apparently sole' and exclusive possession of the goods after the sale; for that, it is said, would be inconsistent with such an open and notorious delivery and actual change as the statute exacts, in order to exclude from the transaction the idea of fraud.” See also Hamilton v. Russell, 1 Cranch, 310; Tilson v. Terwilliger, 56 N. Y. 274; Sutton v. Ballou, 46 Iowa, 518; Dexter v. Parkins, 22 Ill. 144, in which case the court say (page 146): “ In this case, the evidence does not show any delivery of the property to the claimant after the execution of the bill of sale. It is absolute on its face, yet the property remained as much in the possession of Smallridge as it did in that of the claimant, after as before its execution. Such circumstances are not evidence of fraud, but are fraud absolutely.”
The learned chief justice cites as authority the case of Warner v. Carlton, 22 Ill. 415. In that case the court say (page 424): “If the vendor, after the sale without *142a delivery of the goods, were to remain in the- Sole and exclusive possession, it would amount to a fraud in law; but such is not the evidence in this case. No evidence showed that R. H. Carlton, the vendor, Was in the sole and exclusive possession, but it tended to show that he was only acting as a clerk, and that Tilfér was the person having charge of the concern, and was the' principal in its management.” Tilfer was the representative of the vendee. Inasmuch as, in the case which we are considering, the vendor did remain “ in the sole and exclusive possession,” and that he did have charge of the property, it may well be doubted that the last cited case is an authority sustaining the validity of the sale in this cáse; more especially when we consider the language of the same court, in the same volume of reports, as cited in Dexter v. Parkins, supra.
The case of Sutton v. Ballou, 46 Iowa, 518, is also cited in the prevailing opinion as authority therefor. The following statement of facts is taken from the opinion of Day, C. J.: “The evidence tends to show that, before the contract of purchase was made, the cattle had been separated from O’Harra’s, the vendor’s, other cattle on the range, by his son, and driven about a mile. After the plaintiff bought them, they were driven twenty or thirty rods on the range, and then plaintiff hired O’Harra’s boy, through his father, to herd them. After that these cattle remained with others owned by O’Harra, and were herded on the prairie, sometimes by this boy and sometimes by O’Harra’s other children. The cattle went into a bunch together, were driven up at night by the boy, and O’Harra frequently went out in the morning to look after them. No change was observable in the manner of keeping the cattle until O’Harra left, about the last of July.” The learned chief justice of this courts is mistaken when he says that the Iowa court held the sale valid as against, creditors. The jury had held the *143sale fraudulent for want of delivery, and in delivering the opinion, Mr. Chief Justice Day says (page 519): “ In this ease the jury might well find from the testimony that the property was left with .the seller, and his relations to it continued unchanged, so far as the world could know from the acts of the parties. The verdict, we think, therefore, is not without support in the testimony.” And again, on page 521, the learned judge says: “ However sufficient these facts might be as between the parties to pass the title, they are not sufficient under section 1923 of the code, so long as the vendor was allowed to retain the actual possession.” The sale was held to be void as against a subsequent mortgagee without notice. I have already cited this as an authority for my view of this ease; and it seems to me to be conclusive, although not so strong. The relation of the Kirkpatricks to the horses remained unchanged for years. There was no son who had the control, but that control was in the vendors directly.
The case of Brown v. Wade, 42 Iowa) 647, is also cited. There was no question of a fraudulent sale in that case; there was no creditor interested in the action. The point in that case was whether or not there had been such a delivery as to take the contract of sale out of that section of the statute of frauds which refers to parol executory contracts. Mr. Chief Justice Day wrote the opinion in that case also; and in the subsequent case of Sutton v. Ballou, he briefly draws the distinction between delivery as between the parties under the statute of frauds, and delivery under the statute concerning fraudulent conveyances, and says (page 518): “Appellant cites and relies upon Brown v. Wade, 42 Iowa, 647. That case involved simply a question of delivery as between the parties to the contract.”
And the citation from 5 Wait on Actions and Defenses, as follows: “And in general, the ássertion of *144complete authority on the part of the vendee by acts consistent only with ownership, and assented to by the vendor, constitutes a sufficient constructive delivery,”— refers to the question of delivery as between the vendor and the vendee, as to compliance with the statute of frauds relating to parol contracts. The learned author, Mr. Wait, cites as his authority section 311, Story on Sales, and the language used is a quotation from section 311. That section (311) is a portion of chapter 10, Story on Sales, which treats of the question of delivery as between the parties; and the learned author, at the very outset of chapter 10 (see section 295), cautions his readers to draw the distinctions. In section 295 he says: “There are four different species of delivery: 1. That delivery which suffices to pass the title, so that if the goods be destroyed the loss falls upon the vendee, which will form the subject of the present chapter; 2. That delivery which suffices to destroy the lien of the vendor,” etc. It is evident that the learned author, Mr. Story, was not treating of the question of delivery under the statute relating to conveyances fraudulent as to creditors and subsequent purchasers in good faith.
And so in the case of Bailey v. Ogden, 3 Johns. *399, cited in the prevailing opinion of this court, and by Mr. Wait in support of his quotation from Mr. Story. That was a case between the vendor and vendee, involving the statute of frauds relating to parol executory contracts. Mr. Chief Justice Kent delivered the opinion of the court, and at the very commencement of his opinion says: “ This case depends upon the decision of two general questions: 1. Was there a note or memorandum in writing, binding upon the defendants, within the meaning of the statute of frauds? If not, then, 2. Was there a delivery of the sugars so as to change the property, and throw the risk of the subsequent loss upon the defendants?”
*145A delivery may be sufficient to satisfy tbe statute of frauds relative to executory parol contracts, and yet fall far short of satisfying the statute against fraudulent conveyances. See Story on Sales, sec. 279, note 1. See also citation from Sutton v. Ballou, supra.
It remains only to consider the facts in the two cases chiefly relied upon by the learned chief justice, — Stevens v. Irwin, 15 Cal. 503, and Godchaux v. Mulford, 26 Cal. 317. The facts differ essentially from the facts of this case. In Stevens v. Irwin, it appears (see page 507) that the vendee had the exclusive possession of the property for a year or more. In Godchaux v. Mulford (page 321), the facts are stated to be as follows: “ The sale closed on December 16,1857, by the execution of a bill of sale and a lease of the store-room, from which the vendor’s sign was removed, and the vendee’s sign was placed thereon. A person by the name of Blum, who seems to have had no connection with Kraft (vendor) in any way, was employed by the plaintiffs (vendees) to take immediate possession for them. He did so take possession, and retained it until one Black was sent up by them from San Francisco, who remained there until the goods were seized by the sheriff, in February, 1858. After the sale, Kraft was absent some three weeks in San Francisco, but at the time of the levy by the sheriff, he, together with one of the plaintiffs and Blade, was in the store, and was arranging goods in a show-case. In the first case, it will be seen that the vendor did not resume possession until a year or more after the sale, during which time the vendee was in the exclusive possession. In the, second case, the vendor parted with the possession absolutely for some considerable time, parted with the building by leasing it, his sign was removed from the store and the vendee’s sign was placed thereon, and the vendor never was again in the sole and exclusive possession of the property.” These facts do not resemble those *146in tlie case at bar. But the opinion in the case of Stevens v. Irwin, 507 (cited in Godchaux v. Mulford), does apply with peculiar force to this case. “ The delivery must be made of the property; the vendee must take the actual possession.....This possession must be continuous; not taken to be surrendered back again; not formal, but substantial.”
In my opinion, therefore, the court below had some testimony upon which to base the finding that there was no immediate delivery, or actual and continued change of possession; and the judgment and order of the court below should be affirmed.