The opinion
McFARLAND, J., dissenting.
I dissent and adhere to the *188 views expressed when the ease was decided in Department, which need not be here restated. (Lilienthal v. Ballou, 55 Pac. Rep. 251 .) The point upon which the majority decision seems to rest, that the transfer from Phillips Brothers & Co. to the plaintiffs was not an absolute sale, but was in the nature of a pledge, was not raised at the trial, and has no place in the transcript. The appellants defended under section 3440 of the Civil Code upon the theory that Phillips Brothers & Co. were ■ in possession at the time of the transfer to the respondents, and that, therefore, if there was not an immediate delivery followed by an actual and continued change of possession, the attempted transfer was void, and the court so instructed the jury; but there was no question raised, so far as I can discover, about the character of the transfer touching the nature of the title or right which passed by it. It appeared that Phillips Brothers & Co. made an absolute deed of the real estate to the respondents and gave an absolute bill of sale of the personal property, and there was no question as to the transfer being a mere pledge. Moreover, section 3440 refers to “every transfer,” without reference to the kind of title or right which passes by the transfer, and declares it void for want of change of possession only where the party making the transfer is in possession. In the case at bar, the jury must have found, under the instructions of the court, that Phillips Brothers & Co. were not in possession at the time of the transfer; and therefore section 3440 does not apply. George v. Pierce, supra, in my opinion, has no application to the case at bar; it was merely held in that case that there could not be a valid pledge of property without surrendering possession. '