Mulgrew

Plaintiff claims to have purchased two certain racehorses from her husband, Wyman Murphy, on January 11, 1890. On November 16, 1891, the defendant, as sheriff of the county of Sonoma, took possession of the horses under a writ of attachment in favor of the Santa Rosa Bank, and against the husband, Wyman Murphy. The sheriff refusing to return the *550 possession to plaintiff, upon demand, she brought this action to recover the property. The appeal is from the judgment and order denying a motion for a new trial.

1. The main question here presented is, do the facts disclosed by the record support the transfer by the husband to the wife,- in view of the provisions of section 3440 of the Civil Code? In other words, was there such an immediate delivery and actual and continued change of possession of the property as is contemplated by that statute? There is no substantial conflict in the evidence upon this point, and plaintiff herself testified in effect as follows regarding the transfer: “ I resided with my husband upon the homestead at the time I purchased these horses from him. He gave me a bill of sale of them at that time, and they were in the barn a short distance from the house.…