Appeal from the District Court of the Fifth Judicial District, County of San Joaquin.

This was an action against the defendant, sheriff of the county of San Joaquin, for trespass, in seizing four thousand sacks of grain, alleged to be the property of plaintiff and one Sebastian Visher, as tenants in common, the one-half of which had been surrendered to Visher by defendant, before the commencement of this action. The defendant justifies the seizure as made under an attachment issued in an action brought by A. FT. Fisher & Co., against Hiram Dennis, and alleges that the grain belonged to Dennis and Visher, as joint owners, the share of the latter having been restored to him. A. FT. Fisher & Co., intervened, by leave of Court, and set up the indebtedness of Dennis to them and the validity of their attachment.

The facts established by the record are, that Dennis leased certain land to Visher, for one-half of the crops in lieu of rent. While the crops were yet growing, Dennis and Visher united in a conveyance of Dennis’ share of the crops to the plaintiff, in consideration of an existing indebtedness of Dennis. The grain was harvested by Visher, and was never delivered to the plaintiff, and was attached in the hands of Visher, by the defendant, in the suit of Fisher v. Dennis. Dennis was indebted to A. FT. Fisher & Co., and their attachment was properly sued out.

The Court below, at the request of the plaintiff, instructed the jury as follows:

1. If the jury believe, from the evidence, that the grain was growing on the land at the time the assignment was made by Dennis to Bours, and that Dennis was not in possession at the time of said assignment; that all his rights therein would pass to Bours by the deed, and no personal delivery was necessary to pass the title.

2. If the jury believe, from the evidence, that Visher was in possession of the land on which said grain grew at the time of the assignment, made by Dennis to Bours, and consented to let Bours come into possession as a tenant in common with him; that then the possession of Visher was in law T.he possession of Bours.

3. If the jury believe, from the evidence, that Visher was in the actual possession of the grain at the time of the seizure, and that Bours was tenant in common with him in said grain; that then Bours had as much right to the possession as Visher; and if the defendant took and converted the grain to his own use, the plaintiff is entitled to a verdict for the value of it.

The Court then, at the request of defendants, further instructed the jury as follows:

1. If the jury believe, from the evidence, that the grain sued for by the plaintiff was contracted for by him when it was growing, or when it was to be grown; and shall also believe, from the evidence, that it was not to be delivered until after it was reaped, threshed and sacked; and shall also believe that the interveners were creditors of Dennis during that time; that then the contract was fraudulent and void under the Statute of Frauds, as against the creditors of Dennis.

2. If the jury believe, from the evidence, that anything was to be done by Dennis, under the contract with Bours, before the grain was to be delivered to Bours, such as reaping, threshing and sacking, then the property and risk of the grain remained with Dennis, the seller; and being his property and risk it was subject to the attachment lien while it was his property and his risk.

To the giving of which instructions the plaintiff excepted.

The jury found a verdict for defendants. Motion for new trial was made and overruled, and judgment entered on the verdict.

Plaintiff appealed.