wood, and had never before that morning been on the ranch or seen the property. Nearly all the wood and coal were in the canyon, near the cabin, and nearly all in plain sight of the cabin. In about an hour after the purchase had been made and Locatelli had left the cabin and ranch, defendant arrived and levied his writ of attachment upon the ranch, wood, coal, etc., in question, in the case of Tognini & Co. v. Locatelli. At that time plaintiff had done nothing in relation to the property except to receive the bill of sale. Before the levy plaintiff showed defendant the bill of sale as the source of his claim and title, and notified him that he had bought all the property described therein from Locatelli, and had paid for it. Immediately after the levy plaintiff left the ranch and has never

returned.

Plaintiff introduced no proof as to the extent of the ranch, or that it was inclosed. The bill of sale was executed and delivered to plaintiff in the cabin which belonged to Locatelli and which was occupied by him and his men when working on the ranch. It is not disclosed whether or not the land is a portion of the public domain. Upon the above facts shown by plaintiff, defendant moved for a nonsuit, upon the following grounds:

"First-That the uncontroverted case made by plaintiff constituted a fraud in law.

"Second-That from the testimony it appears that plaintiff claims the personal property described in the complaint, by virtue of a pretended purchase of real property upon which the personalty is situated, and that the instrument in writing under which he claims the real property is insufficient to convey any right or possession to the real property, and is void.

"Third-That there is not any evidence that the ranch was inclosed by any actual inclosure, or anything equivalent thereto, to show the extent of plaintiff's dominion or control of the same, as claimed by him, or otherwise.

"Fourth-That the testimony shows that the plaintiff relies upon a constructive possession of the land where the coal was pitted and the wood piled, to make out his possession of the personal property, in which case he can only recover by the introduction, as evidence, of such a deed as will vest in him a legal seizin and possession, and that the written instrument introduced did not convey, and does not convey, to him any right of possession, the same being in law a simple parol conveyance of land, and insufficient to convey personal property thereon, as against creditors.

"Fifth-That plaintiff has not shown any delivery of the personal property or any change of the possession thereof.'

Did the court err in denying defendant's motion? Was there sufficient proof of delivery and change of possession of the wood and coal to entitle plaintiff to the finding of a jury upon those questions? There were no words or acts of delivery of the personal property, and plaintiff did not do anything to take possession of the wood and coal except to receive the bill of sale. A delivery of

the bill of sale was not even a symbolical delivery of the personal property described therein: Carter v. Willard, 19 Pick., 12; Dempsey v. Gardner, 127 Mass., 382. Certainly, Locatelli's discharge of his workmen did not constitute a delivery or change of possession of the wood and coal; nor did Locatelli's departure have that effect, although coupled with the general declaration that he left plaintiff in possession of everything.

Undoubtedly, plaintiff might have taken possession of the personal property in some proper manner before the levy, and had he done so, there would have been a complete delivery and change of possession, as was held by this court in Gaudette v. Travis, 11 Nev., 157. But the mere departure of the vendor, together with the execution and delivery of the bill of sale, did not have that effect. Those acts would not have constituted a sufficient delivery and change of possession if Locatelli had sold the personal property only. In that case, considering the character of the property, plaintiff would not have been obliged to remove it, but it could have been delivered and the piles of coal and piles of wood could have been marked in plaintiff's name.

Indeed, counsel for respondent do not claim that, prior to the levy, there were a sufficient delivery and change of possession of the wood and coal, independently of the sale, surrender, and taking possession, of the ranch. It is said, however, that as between the vendee of personal property and an attaching creditor of the vendor, the former has a reasonable time in which to take possession, and that whether plaintiff had taken such reasonable time prior to the attachment, was a question for the jury to decide.

The statute declares that every sale made by a vendor of goods and chattels in his possession, or under his control, unless the same be accompanied by an immediate delivery and continued change of possession, of things sold, shall be conclusive evidence of fraud as against the creditors of the vendor. In Clute v. Steele, this court decided that the statute is satisfied if there is a delivery at any time before the rights of creditors accrue by attachment or otherwise. Undoubtedly, the acts that constitute a delivery and change of possession vary in different cases and depend upon the character and quantity of the property sold. But in every case where property is in the vendor's possession, or under his control, as against his creditors, there must be a valid delivery before the writ of attachment is levied.

In this case there was no conflict of evidence. It all showed that there was no delivery or change of possession of the wood and coal, independently of the sale, surrender, and taking possession of the ranch. It was, therefore, the duty of the court to grant a non-suit, unless plaintiff's purchase and possession of the ranch constituted a sufficient possession of the property in dispute.

It is conceded that the bill of sale did not convey Locatelli's title to the ranch. There was no proof that the ranch was inclosed or had any established boundaries. Plaintiff then did not have constructive

possession of any portion thereof: Cannon v. Union Lumber Co., 38 Cal., 674; Wolfskin v. Malajowich, 39 Cal., 281; Eureka M. Co. v. Way, 11 Nev., 182. He had actual possession of the cabin only. Since there was no delivery of the wood and coal, actual or symbolical, should we assume that the legal title to the ranch was in Locatelli, nothing less than a conveyance by deed of the real estate, with surrender of possession thereof to plaintiff, would have given the latter possession of the personal property therein: Sharon v. Shaw, 2 Nev., 292; Stephenson v. Clark, 20 Vt., 627; Shuman v. Ritter, 8 Pick., 443. Plaintiff had neither actual nor constructive possession of any part of the ranch outside of the cabin, or of the wood and coal thereon, at the time of the levy, and the motion for non-suit should have been granted.

In view of the conclusions reached, we deem it unnecessary to point out the errors contained in plaintiff's first and second instructions. The judgment and order appealed from are reversed and the cause is remanded.

SUPREME COURT OF NEW MEXICO.

ROBBINS v. COLLIER.

Filed January 29, 1885.

JUDGMENT IN LEGAL ACTION WHEN A BAR TO SUIT IN Equity.-A judgment for the defendant in an action at law brought to recover a balance alleged to have been found due the plaintiff upon the settlement of a partnership, is a bar to a subsequent suit in equity brought by the plaintiff to set aside the same alleged settlement and for an accounting of the partnership affairs.

ERROR to the first judicial district court of San Miguel county. The opinion states the facts.

William Breeden and Catron, Thorton & Clancy, for the plaintiff in

error.

D. B. Shield, J. H. Koogler and W. S. Childers, for the defendant in error.

WILSON, A. J. Joseph S. Collier, the defendant in error, filed his bill in equity against Augustus O. Robbins, plaintiff in error, alleging that he and Collier, on or about the first day of February, 1879, agreed to become partners in the business of making, buying and selling furniture and such other goods as are usually made, bought and sold in a wholesale and retail furniture store, including the making, buying and selling coffins, caskets, metallic cases and general undertaking business, to be carried on at Los Vegas, New Mexico, and such other places in said territory as might thereafter be agreed upon." He further alleged that the said defendant had possession of all the assets of the firm, and that a large sum was due him as such partner, and alleging also in said bill, that in the month of February, 1880, the said Robbins by false and fraudulent repre

sentations, with intent to cheat, swindle and defraud, procured or induced him, the said Collier, to sign a bill of sale of all his interest in the said goods and partnership effects to said Robbins, with a prayer that an account might be taken and the partnership dissolved, etc.

The said Robbins filed an answer to said bill under oath, denying the existence of said partnership and denying that any indebtedness existed, and also denying that the complainant had any interest in or that there was due to him any sum whatsoever from the assets or business referred to in said bill, and alleging that Collier had merely been hired by him as salesman, etc., and for which services, he had received all he was entitled to and had gone out of the business, after selling and transferring to Robbins all right, share and interest which he ever had or might have had in said assets and business, and that the consideration for such transfer had been fully paid; and further, that in a suit at law brought against him by said Collier in the same court upon the same subject matter, and upon the same demand, a verdict and judgment had been rendered in favor of him, the said Robbins.

A master was appointed, who reported in favor of the complainant for the sum of one thousand eight hundred and twenty-six dollars and seventy-five cents, which report was affirmed by the court, and, upon a writ of error, the case was brought into this court for re

view.

The errors assigned were:

1st. That the plaintiff below transferred and assigned all the interest and rights, on account of which he sought to recover, to defeat, delay and defraud his creditors and to cover his property from them, to avoid the payment of his debts, and that the transfer was voluntary and fraudulent.

2nd. That the same subject matter and demand upon which the bill of complaint was filed and relief sought, had been tried in a suit at law between these parties and a verdict and judgment thereon in said suit rendered in favor of Robbins, and that a judgment in a suit at law rendered by a court of competent jurisdiction upon the same demand for which this suit is brought was a complete bar to this suit.

It is denied by the defendant in error that the cause of action was the same in the two suits, But an examination of the bill and declaration in the suit at law demonstrates, we think, that the cause of action is substantially and materially the same in each. In the action at law, the defendant in error alleged that there had been a partnership settlement between them and that there was a balance due him from the defendant of three thousand dollars, "for goods, cash and merchandise," and to sustain this charge in his declaration filed in the suit at law, Joseph S. Collier, the defendant in error, testified as follows:

Question: Tell the jury all you know, if anything, in reference to the indebtedness to you. Give all the facts and circumstances in

the case?

Answer: We run a partnership business for about a year; that was closed by my selling out to him and we were to invoice everything in the partnership, and as aoon as we could find out what was really due me, he was to pay me whatever he found due from from the invoices of the goods of the two places, our accounts and everything.

In the equity suit under consideration, he alleges the transfer of the goods and partnership effects was obtained by Robbins throngh false representations. The facts stated in the bill and declaration are substantially the same and the evidence given in each to sustain the allegations in each is substantially alike. The cause of action set forth in each, is for the same alleged partnership transactions and effects; yet the counsel for defendant in error insists that the cause of action is not the same in the two cases. The action at law was not dismissed for want of jurisdiction, nor for the reason that there was not sufficient remedy at law. It was tried on its merits and a verdict and judgment rendered against the complainant herein. Can it be supposed that if the defendant in error had recovered his claim in his action at law between the same parties that he would be here now, asking a dissolution of the partnership and praying "that an account may be taken under the directions of this honorable court, of all and every, the co-partnership dealings and transactions." A quotation from the declaration of the action at law between the same parties will show the absurdity of such an attempt.

"And also the further sum of three thousand dollars, the balance due plaintiff from defendant for goods, cash and merchandise, on a partnership settlement between plaintiff and defendant."

We think the quotations given demonstrate that the plaintiff could not recover his claim in each case for the reason apparent on the record of both cases, that they are for one and the same cause of action. Hence a defeat in the first action is as much and as successful a bar to a recovery in the present suit, as if he had recovered his whole claim in his action at law. This view of the case relieves the court from the necessity of noticing any other assignment of error in the case.

It was settled in the case of the U. S. Bank v. Beverly et al., 1st Howard, 134, that a matter decided by a court of competent jurisdiction can not be contested again between the same parties and there is no difference in this respect between a verdict and judgment at common law and a decree of a court of equity. This doctrine is too well recognized to require the citation of authorities to sustain it. The second assignment of error is therefore sustained and it is ordered, adjudged and decreed that the decree and judgment of the court below be reversed and the bill dismissed at the cost of Joseph B. Collier, defendant in error.

BELL, A. J., concurred.

No. 60-6.