Eppinger

Action of claim and delivery to recover the possession of certain trays and sweat boxes.

*370 The plaintiffs claim the property by virtue of a bill of sale made to them by Napoleon Vieu; and the defendant, who is the sheriff of Fresno county, claims the same by virtue of a levy under a writ of execution upon a judgment issued against said Vieu in behalf of one Fon Kee. The controverted issues at the trial were whether there had been a sufficient change of possession to satisfy the statute of frauds, and whether the sale to the plaintiffs had been made with the express purpose on the part of Vieu to hinder and defraud his creditors, and particularly the pdaintiff in the execution. The case was tried by a jury, who rendered a verdict in favor •of the defendant. From the judgment thereon and an order denying a new trial the plaintiffs have appealed.

Upon the foregoing issues the evidence in behalf of the respective parties was decidedly conflicting, and the verdict of the jury thereon cannot be disturbed.

For the purpose of sustaining the defendant’s claim that the sale by Vieu to the plaintiffs was with the intent to defraud his creditors, evidence was introduced tending to show…

dissenting.—I dissent, and adhere to the conclusion reached in Department.

Rehearing denied.

The following is the opinion of Department Two, rendered on the 7th of November, 1895, referred to in the dissenting opinion of Mr. Justice McFarland.

Plaintiffs brought this action against defendant, who is the sheriff of Fresno county, to recover possession of a quantity of trays and sweat-boxes used in the curing of raisins. It is alleged in the complaint that plaintiffs own the property, and that defendant took the same from their possession. Defendant, by his answer, denied plaintiff's ownership and possession; alleged that he seized the goods under a writ of execution upon a judgment recovered by one Fon Kee against one Vieu; that Vieu was the owner and in possession thereof at the time of such seizure; that plaintiffs took the goods from him, defendant, at the commencement of this action; and prayed a return of the same. The plaintiffs claim under a bill of sale made to them of the property by said Vieu on April 6, 1893; the levy by defendant was in November, 1893. The defense is that the sale was void because of constructive fraud in that it was not accompanied by an immediate…