Castle

This is an action to recover a sum of money held by the defendant sheriff in lieu of certain hay attached by him in a suit brought by defendant Crane against Hayes Nicewonger and others. The plaintiff had judgment, and from such judgment, and an order denying their motion for a new trial defendants appeal. The pivotal question argued in the briefs, and upon which the determination of this appeal depends, is whether a sale of the hay levied upon, made by Hayes Nicewonger to plaintiff, prior to such levy, was accompanied by an immediate delivery, and followed by an actual and continuous change of possession as required by section 3440 of the Civil Code. The findings in this regard are assailed as not supported by the evidence, and a brief summary of such evidence will suffice to indicate the points upon which such contention is based. It appears that plaintiff owns the land upon which the hay in question was produced, and that Hayes Nicewonger, his brother-in-law, occupied the same from October 1, 1902, to September 30, 1903, under a contract whereby Nicewonger was to farm the land and yield to plaintiff one third of the crop produced. During the term of Nicewonger’s occupancy of…