ery and change of possession is sufficient is always a question of fact, never a matter of law.10

ure during that time. But that is not a correct construction of the provision of the code. It denounces the transfer as fraudulent and void, as against the claims of a creditor who is such creditor during any of the time that the person who made the transfer remained in possession, after a transfer which is not accompanied by an immediate delivery and followed by an actual and continued change of possession": Watson v. Rodgers, 53 Cal. 401; Edwards v. Sononia Valley Bank, 59 Cal. 148; Rohrbough v. Johnson, 107 Cal. 144, 419, 40 Pac. 37.

Executory agreement to pledge void as against creditor: Hitchcock v. Hassett, 71 Cal. 331, 334, 12 Pac. 228.

So, where a person sold some property in 1871, contracted a debt in 1874, and delivered the property to the purchaser in September, 1876, the creditor could attach the property the following month, although in the possession of the purchaser: Watson v. Rodgers, 53 Cal. 401.

10 ̊ Delivery and Change of Possession Questions of Fact. What constitutes an 'immediate delivery' or an actual and continued change of possession' is, however, a fact to be determined by the court upon the evidence presented in each particular case. The circumstances connected with a transfer of personal property are so varied that it would be impossible to frame a rule applicable to each case, or to determine in advance what acts would be sufficient to meet the requirements of the statute': Claudius v. Aguirre, 89 Cal. 501, 503, 26 Pac. 1077; Samuels v. Gorham, 5 Cal. 226; Godchaux v. Mulford, 26 Cal. 316, 322, 323, 85 Am. Dec. 178; Woods v. Bughey, 29 Cal. 466, 476; Byrnes v. Moore, 93 Cal. 393, 29 Pac. 70; Rohrbough v. Johnson, 107 Cal. 144, 149, 40 Pac. 37; Dubois v. Spinks, 114 Cal. 289, 293, 46 Pac. 95.

In no case can the mere fact that the vendee has the control of the property, as matter of law, be

202. Failure to File Notice of Intention to Pledge Renders Pledge Void as Against Creditors.

Whenever a notice of intention to pledge is required to be filed, a pledge made without such filing, except when property exempt from execution is pledged, is void against all existing creditors of the pledgor.11

203. Pledge of Corporate Stock not Entered on Books of Corporation Valid Except as Against Bona Fide Purchasers.12

A pledge of corporate stock, not entered into the books of the corporation, is valid against conclusive that the change of possession has become actual and continued as against creditors: Hesthal v. Myles, 53 Cal. 623, 626.

The declarations of the vendor of the property, made while in actual possession of the property sold, with the knowledge or consent, express or implied, of the vendee, are admissible in determining the question of the delivery of the property, being a part of the res gestae: Cahoon v. Marshall, 25 Cal. 197. 202; Murphy v. Mulgrew, 102 Cal. 547, 552, 41 Am. St. Rep. 200, 36 Pac. 857.

11 See Civil Code, section 3440, latter part, as quoted under section 193, note 11, above.

12 Weston v. Bear River etc. Co., 6 Cal. 425; Naglee v. Pacific Wharf Co., 20 Cal. 259; People v. Elmore, 35 Cal. 653; Parrott v. Byers, 40 Cal. 614, 625; Farmers' Nat. Gold Bank v. Wilson, 58 Cal. 600; Blakeman v. Puget Sound Iron Co., 72 Cal. 321, 13 Pac. 872; Spreckels v. Nevada Bank, 133 Cal. 272, 276, 54 Am. St. Rep. 348, 45 Pac. 329; McFall v. Buckeye etc. Assn., 122 Cal. 468, 68 Am. St. Rep. 47, Liens-25

everyone except a bona fide purchaser or encumbrancer for value.13

204. Pledge by Apparent Owner Valid as to Bona Fide Pledgee.14

No person who allows 15 another to assume the apparent ownership16 of property for the pur

55 Pac. 253; West Coast Safety Faucet Co. v. Wulff, 133 Cal. 315, 85 Am. St. Rep. 171, 65 Pac. 622.

13 The expression "bona fide purchaser for value" does not, however, include a person who buys a certificate of stock indorsed in blank, which has been stolen from or lost by the owner without his fault, when bought from the thief or finder or person deraigning from him: Barstow v. Savage Min. Co., 64 Cal. 388, 49 Am. Rep. 705, 1 Pac. 349; Sherwood v. Meadow Val. Min. Co., 50 Cal. 412. See, also, Craig v. Hesperia Land etc. Co., 113 Cal. 7, 14, 54 Am. St. Rep. 316, 45 Pac. 10. The contrary was held in Winter v. Belmont Min. Co., 53 Cal. 428.

14 Compare Civil Code, section 2991. This section must be read together with Stats. 1877-78, p. 835, c. 535.

By that statute a transfer of "goods, or of the documents of title to goods, by way of pledge or security, made by a person intrusted with the possession thereof to a bona fide purchaser for value, was declared valid as against the owners of the goods or muniment of title to the amount actually advanced by the transferee to the person intrusted with the possession (sections 1, 2 and 8).

This statute was applied in Amann v. Lowell, 66 Cal. 306, 5 Pac. 363.

15 No Person Who Allows Another.-In Arnold v. Johnson, 66 Cal. 402, 5 Pac. 796, where a bailee of a certificate of stock indorsed in blank pledged the same to a bona fide pledgee for value, the court said: "The difference between this case and Barstow v. Savage Min. Co., 64 Cal. 388, 49 Am. Rep. 705, 1 Pac.

349, is that in this case the owner of the stock voluntarily delivered the indorsed certificate to the person who pledged it, while in that the indorsed certificates were stolen from the owner of the stock. In this case the owner allowed another to assume the apparent ownership of the stock. In that the owner did not allow another to assume the apparent ownership. The distinction is an important one.

16 What Amounts to Apparent Ownership.-The mere possession of chattels, by whatever means acquired, if there be no other evidence of property or authority to sell from the true owner, will not enable the possessor to give a good title. But if the owner intrusts to another, not merely the possession of the property, but also written evidence, over his own signature, of title thereto and of unconditional power of disposition over it, the case is vastly different: Shafer v. Lacy, 121 Cal. 574, 578, 52 Pac. 1004. Compare Brewster v. Sime, 42 Cal. 139, 147.

The mere statement of a person that he is the owner of property then stored in a common carrier's warehouse, without showing a bill of lading or invoice thereof, does not establish apparent ownership in him; and a pledgee of such person is not protected against the real owner: Chicago etc. Press Co. v. Lowell, 60 Cal. 454.

An indorsee of a warehouse receipt is the apparent owner: Davis v. Russell, 52 Cal. 611, 616, 28 Am. Rep. 647.

A factor is the apparent owner under Civil Code, section 2369, providing: "A factor has ostensible authority to deal with the property of his principal as his own, in transactions with persons not having notice of the actual ownership': See Green v. Campbell, 52 Cal. 586; Wisp v. Hazard, 66 Cal. 459, 6 Pac. 91.

Historical.-In the early California cases, a similar rule as to factors was adopted, which, however, was not applied to persons whose sole business was to sell the goods of others consigned to him: Hutchinson v. Bours, 6 Cal. 383; Glidden v. Lucas, 7 Cal. 26, 30; Horr v. Barker, 11 Cal. 393, 70 Am. Dec. 791. Compare Leet

pose of making any transfer17 thereof can defeat a pledge of the property actually made1s

v. Wadsworth, 5 Cal. 404. But these cases were overruled and the common-law rule restored in Wright v. Solomon, 19 Cal. 64, 79 Am. Dec. 196, and the doctrine of this case prevailed until the adoption of the code. Certificates of stock are so far subject to the operation of the negotiability principle that the possessor of a certificate indorsed in blank is the apparent owner thereof, and hence a bona fide pledgee for value thereof may hold the security for the full amount advanced by him thereon: Ambrose v. Evans, 66 Cal. 74, 4 Pac. 963; Arnold v. Johnson, 66 Cal. 402, 5 Pac. 796; Brittan v. Oakland Bank of Savings, 124 Cal. 282, 288, 289, 71 Am. St. Rep. 58, 57 Pac. 84; Thompson v. Toland, 48 Cal. 99, 111, 112.

The same is true of a warrant on a municipal treasury: Coit v. Humbert, 5 Cal. 260.

Likewise, it follows that the pledgee of a note executed without consideration may enforce it against the maker for the amount of his pledge: Bell v. Beau, 75 Cal. 86, 16 Pac. 52.

17 For Purpose of Transfer.-"One who has allowed another to assume the apparent ownership of property for the purpose of sale or transfer cannot recover from the pledgee of such other person, if the pledgee receives the property in good faith, in the ordinary course of business and for value. The rule of the code permits the owner to show that the property was not intrusted to the bailee or person assuming ownership, for the purpose of sale, but for transportation or temporary custody and the like objects": Shafer v. Lucy, 121 Cal. 574, 577, 52 Pac. 1004.

18 Actual Transfer is Necessary.-Under section 3 of the act of 1877-78 (see note 14, above), the goods must be actually transferred before the transferee receives notice of the want of authority of the person in possession of them, to transfer the goods, in order to render the transfer valid as against the