ANIMALS RUNNING ON THE KANGE. 73 



accustomed range, these acts constitute a good delivery and 

 change of possession.^® 



A statute providing that stock animals running on the 

 range may be sold by the sale and delivery of the brand, and 

 that the purchaser shall record the bill of sale, refers only to 

 what is known as a "sale of a mark and brand," i. e., where 

 the animals run at large and are identified exclusively by the 

 owner's mark and brand and he sells his entire stock in a par- 

 ticular mark and brand.^* It does not, however, admit of the 

 construction that a number less than all in any brand may be 

 sold by an unrecorded sale.^** But it does not apply to a sale 

 of cattle which the seller has placed in a pasture and desig- 

 nates in the bill of sale as a certain number bearing a certain 

 brand f^ nor to a sale of the stock only and not of the 

 brand, where there has been actual delivery and change of 

 possession, and the cattle are described by the brand in the 

 unrecorded bill of sale only as a matter of identity.^^ And 

 one who has once had actual possession under a verbal con- 

 tract of sale does not lose his title by subsequently turning the 

 cattle upon the range.^^ Where the transaction is tainted 

 with fraud, the fact that the seller caused the county clerk to 

 record the marks and brands of horses as having been trans- 

 ferred to the purchaser is not alone a compliance with the 

 statute.2* 



An estimate as to the number of stock running loose on a 

 range, not all of which had been rounded up, may be given by 

 one familiar with the stock and their range ; and testimony is 

 admissible as to this number, based on the rule in general use 



" Walden v. Murdock, 23 Cal. S40- 



" Nance v. Barber, 7 Tex. Civ. App. III. See Black v. Vaughan, 70 

 Tex. 47; Wells v. Littlefield, 59 id. 556. 



'° Rankin v. Bell, 85 Tex. 28. 



^' Nance v. Barber, supra. 



"' Rainwater-Boogher Hat Co. v. O'Neal, 7 Tex. Civ. App. 242. And see 

 First Nat. Bk. v. Brown, 85 Tex. 80. 



'' Davis V. Dallas Nat. Bk., 7 Tex. Civ. App. 41. 



" Hickman v. Hickman, 5 Tex. Civ. App. 99. 



