Bucher

Appeal by plaintiff upon bill of exceptions from judgment rendered against him and in favor of defendant.

The case is this: On December 24, 1906, one Hicks and wife owned certain real property in the city of San Bernardino, California, upon which was a house used as a lodging-house. Hicks and wife sold the real property and the furniture and fixtures of the lodging-house to plaintiff, who paid the full consideration therefor. The lodging-house had been operated before the sale by the wife of Hicks, who was indebted to parties in San Bernardino. These creditors instituted a suit against Mrs. Hicks, and, on December 27, 1906, levied an attachment upon the lodging-house, furniture and fixtures. This writ was executed by defendant, a constable, and the personal property on that date reduced to possession by him. In order to recover possession from defendant this action in claim and delivery was brought by plaintiff. The right of possession to the personal property hinges upon the validity of its sale as affecting creditors of Mrs. Hicks. The court finds that such sale was not accompanied by immediate delivery and followed by actual and continuous possession, as required by section…