*310By the Court.

The Gen. Stat. ch. 41, sec. 15, provide that: “ Every sale made by a vendor of goods and chattels in his possession or under his control, * * unless the same is accompanied by an immediate delivery, and followed by an actual and continued chang’e of possession of the thing’s sold, * * shall be presumed to be fraudulent and void, as against the creditors of the vendor, * * * unless those claiming under such sale, * * make it appear that the same was made in good faith, and without any intent to hinder, delay or defraud such creditors.”

The defendant contends, that under the complaint in this action, it was necessary for the plaintiff to show, that the sale from Haynes to himself of the property which the defendant attached on the writ ag’ainst Haynes, was made to him in good faith. That, therefore, the good faith of the sale from Haynes to plaintiff, was directly in issue; that, therefore, the court below erred in excluding the evidence of defendant upon that issue, and in instructing the jury that they should not take into consideration whether the sale was fraudulent, as no issue was made on that point.

The necessity, aforesaid, on the plaintiff’s part, of proving such good faith, arises, it is contended, from the alleged fact,1 that, upon the complaint, it would seem to be true that the creditors of Haynes attached the property while it was in Haynes’ possession.

This position, is, in our judgment, altogether incorrect.

In the first place, the complaint while it sets forth a taking by the defendant on a writ of attachment “ in the suit wherein O. H. Kellogg, T. B. Kellogg and P. Johnson were plaintiffs, and Daniel W. Haynes was defendant,” contains nothing which can be construed into an admission that such plaintiffs had a cause of action against Haynes, constituting them his creditors.

*311Nor, secondly, does it allege or admit that Haynes was in possession.

The defendant insists, however, that inasmuch as it alleges that on the next day after the taking, plaintiff served upon defendant the notice, demand and affidavit provided for by Gen. Stat. ch. 66, sec. 137; and inasmuch as no such affidavit, notice or demand would have been necessary, unless the property had been in Haynes’ possession, [9 Minn. 97; 14 Minn. 163] such allegations show that it was in his possession.

The complaint states a good cause of action, irrespective of the notice, &c., that is, on the face' of the complaint, they are irrelevant.

To make them relevant, says the defendant, it was necessary that Haynes should have been in possession; therefore, “ it appears from the complaint that he was in possession.”

In other words, the insertion of that which is apparently irrelevant, amounts in pleading to an admission of whatever would make it relevant.

But, in the present case, the possession of Haynes would not be enough, per se, for the defendant’s purpose, since such notice, &c., would not have been necessary, unless the'property was taken by the sheriff while in Haynes’ possession under circumstances which would create a presumption prima facie of ownership in him. [14 Minn. 167.]

To sustain the defendant’s position, then, this complaint must be taken to disclose, not only the possession of Haynes, but also- the circumstances, above mentioned.

It is quite clear that the character of the sale was not in issue, and that the charge and rulings of the court in that respect were correct.

Order denying new trial affirmed.