apparent in the bill of sale, was secret, and consequently the transaction was against public policy, and fraudulent in law, and therefore void as to attaching creditors.
(Opinion Filed April 1, 1890.)
APPEAL from district court, Ramsey county; Hon. Charles F. Templeton, Judge.
Messrs. Miller, Cleland & Cleland, for the appellants, contended that the transfer of the goods mentioned hereafter in the opinion was in the nature of a pledge; that plaintiffs never claimed to be absolute owners thereof, never sold or disposed of any of them prior to the levy of the attachment by the defendant. The recording of a bill of sale, there being no statute requiring it or authorizing it, is of no effect and is not an assertion of title. Booth v. Kehoe, 71 N. Y. 341.
If, though absolute in form, the transfer to the plaintiffs was intended as security only, and was so treated by them it was valid. Smith v. Beattie, 15 N. Y. 542; Despard v. Wallbridge, 15 id. 374.
J. F. McGee and D. E. Morgan, for respondent, argued: That plaintiffs having obtained title by a bill of sale, absolute in its terms, must stand on that bill and cannot now claim as pledgees. Blakeslee v. Rossman, 43 Wis. 116; Stein v. Munch, 24 Minn. 390; Robinson v. Elliott, 22 Wall. 513; Janvrin v. Fogg, 49 N. H. 340.
Wallin, J. This is an action of claim and delivery, whereby plaintiffs seek to recover a stock of merchandise, including safe, store fixtures, book-accounts, and bills receivable, seized by defendant as sheriff, under writs of attachment issued in actions instituted by the creditors of one T. T. Lee. The case was tried without a jury, and the district court filed its findings of fact and conclusions of law, and directed that judgment be entered for a return of the property to the defendant, or, in case a return could not be had, for the value thereof to the amount of the attachment liens. Among the facts found by the trial court are the following: That at the time in question defendant was sheriff of Ramsey county, and as such sheriff, on December 8,
