Freeman

This action, in claim and delivery, was brought by respondent to recover certain horses. The horses in question formerly belonged to one Porter, and were purchased from him by Freeman, October 12, 1889, and were afterward, on October 24, 1889, attached by defendant, as sheriff, as the property of Porter in an action brought by Patterson against Porter and Schell. It is conceded by appellant that there was no actual fraud in the sale of the horses by Porter to Freeman, but he contends that there was no immediate delivery of the property to Freeman, and that the sale was not followed by an actual and continued change of possession, as required by section 3440 of the Civil Code. The cause was tried by the court, and findings and judgment went for plaintiff; and, defendant’s motion for a new trial having been denied, he appeals from the order denying it.

What constitutes an “immediate delivery” and an “actual and continued change of possession” is held to be a question of fact to be determined by the court upon the evidence presented in each particular case: Godchaux v. Mulford, 26 *538 Cal. 322 , 85 Am. Dec. 178 ; Claudius v. Aguirre, 89 Cal., at page 503, 26 Pac. 1078 . In the…