Nor do they give any rights to the general creditors of the factor or agent in possession, or to his voluntary assignee. In the language of Willes, J., "The authority given by the Factors Acts quoad third persons is an authority superadded and accessory to the ordinary authority given by a principal to his agent. It was not intended by those acts to provide a remedy for all the hardships which may occur to innocent persons by dealing with one in the apparent ownership of goods as if he were the real owner; but only with cases where the agent is intrusted with and in possession of the goods with the assent of the true owner of them.” 1

321. Vendor's Retention of Possession. At common law, the title to goods may pass from the seller to the buyer without a change of possession. If the contract is an unconditional one for the present sale of specific chattels, the buyer becomes their owner by force of the contract. Title having vested in him, it can be devested only by his consent, or by operation of law. These principles, we have seen, are well established. It follows from them, that after the title to specific goods has vested in the buyer, neither the creditors of the seller nor his subsequent vendees can acquire title from him.2

322. Anomalous Doctrine in a Few States; Delivery of Possession necessary to pass Title. This doctrine of the common law prevails in most of our jurisdictions, save as it has been modified by statute. In a few States, however, the courts have adopted the rule "that delivery of possession is necessary to the conveyance of a title to personal chattels, as against every one except the vendor; and a subsequent purchaser, with no notice of a prior sale, receiving possession, has a better title than one who has purchased the same thing with no delivery of possession.' The decision in which this rule was

1 Fuentes v. Montis, L. R. 3 C. P. 268 (1868). The court deals in this case with the acts prior to 40 & 41 Vict. c. 39; that is, with the statutes after which most American legislation has been fashioned.

2 Blackburn, Sales (2d ed.), 260; Meade v. Smith, 16 Conn. 346 (1844); Sandford v. Wiley, 166 Ala. 136; 52 So. 339 (1910).

3 Crawford v. Forristall, 58 N. H. 114 (1877); Chamberlain Co. v. Tuttle. 75 N. H. 171: 71 At. 865 (1909). In Reed v. Reed, 70 Me. 504, 306 (1880), it is said: "The law is well settled that without delivery the

first announced is based largely on civil-law authorities, which the court understood to be in accord with those of the common law. Only two cases are cited in support of the sweeping proposition that "when the same goods are sold to two different persons, by conveyances equally valid, he who first lawfully acquires the possession will hold them against the other."

The first is from Massachusetts.2 It declared that the sale by one partner of a ship at sea did not give to the purchaser for value a complete and perfect title, but "that a subsequent possession within a reasonable time was necessary to complete the transfer;" and therefore that a third person who bought and received possession of the ship from the other partner, after the first sale but without notice, obtained a complete and perfect title, - the second sale "necessarily intercepting the title attempted to be passed by the first conveyance."

323. Caldwell v. Ball misunderstood by the Massachusetts Court. - The other case which is cited arose out of the transfer of different parts of a bill of lading, by the owner of goods, to different parties. Although the action was in trover against the master who had signed the different parts, and the plaintiff claimed as transferee of the part first signed by him, all of the judges declared that the action was to be considered as one between bona fide indorsees of the different parts of the bill, and the only question was which transferee of the instrument was owner of the goods. At the trial, Willes, J., ruled that as the transferees were both "bona fide holders of the bills, he who had first got possession by a legal title ought to be preferred." On the motion to set aside the verdict, which was for the defendant, Ashhurst, J., observed, "Where equity is equal between the parties, a legal title must prevail. This reduces the question to a mere point of law." He then proceeds to show that the different bills of lading (for the same cargo) were all in substance to the order of the shipper; that the indorsement title does not pass as against an attaching creditor." See Huschle v. Morris, 131 Ill. 587; 23 N. E. 643 (1890).

1 Lanfear v. Sumner, 17 Mass. 110; 9 Am. Dec. 119 (1821); Burdick's Cases on Sales, 540.

Lamb v. Durant, 12 Mass. 54 (1815). See note to this case at p. 59, by D. A. Tyng, criticising it and Lanfear v. Sumner.

of one of the bills to defendant's principals was “an immediate transfer of the legal interest in the cargo," and that as the legal title was vested in such principals, the shipper could not, by a subsequent transfer of the bill first signed by the master, convey any title to the plaintiff. Buller, J., held the same view; the bills were to be treated as made to the order of the shipper, and the question was, "Who has the prior right under him? who has the legal title?" After referring to the fact that a bill of lading "is assignable in its nature; and by indorsement the property is vested in the assignee," he concludes, "Both parties claim under Thompson (the shipper), but France & Co. (defendant's principals) have the first legal right, for the two bills of lading were first indorsed to them." 1

Clearly this case is no authority for the proposition to which it is cited by the Massachusetts court.

324. The Anomalous Doctrine supported by Considerations of Public Policy. - The Courts of Illinois, while adopting the Massachusetts rule, have rested it on considerations of commercial policy rather than on common-law principles. The rule of the common law, it is thought, "would operate most injuriously upon the trade of the country, as a person could never be safe in the purchase of personal property if his title was liable to be defeated by a prior sale of his vendor, made in some remote part of the country. . . . Possession of personal property has always been regarded as evidence of ownership, and public policy requires that while personal chattels remain in the possession of the former owner, they should as to third persons be regarded as his.” 2

325. These Considerations have induced Legislation. - Considerations of this nature have led to the enactment of statutes in England and in some of our States, changing the rule of the common law,5 and giving to the vendor's retention of

3

4

1 Caldwell v. Ball, 1 D. & E. 205, 210, 214, 215, 216 (1786).

2 Burnell v. Robertson, 5 Gilm. (10 Ill.) 282, 291 (1848). Sale of Goods Act, § 25 (1).

Claflin v. Rosenberg, 42 Mo. 439, 448 (1868); Trimble v. Keet, 65 Mo. App. 174; 2 Mo. App. Repr. 1212 (1895); In re Taylor, 95 Fed. 956 (1899); Burdick's Cases on Sales, 712.

Johnson v. The Credit Lyonnais, 3 C. P. D. 32, 40 (1877); Burdick's

possession in certain cases the effect of reputed ownership. The Uniform Sales Act belongs to this class.1

326. Delivery under this Rule. Even in Massachusetts, the fact that the goods are left by the purchaser in the vendor's control will not prevent a "complete and perfect title" passing, provided the latter has delivered the goods to the former and thereafter holds them as the purchaser's bailee. But it is said in a recent case, "The delivery required by the rule in Lanfear. Sumner 3 is delivery in its natural sense; that is, a change of possession." In New Hampshire, if the goods are bulky or immovable, or are at such a distance from the purchaser that he cannot take actual possession at once, his title is valid even against the vendor's creditors or subsequent vendees, "if he take possession in a reasonable time." 5 The duty of a purchaser, in that State, is set forth in the following terms, in a recent decision." "Admitting the good faith of the parties, and that they stand on equal grounds as to notice of each other's rights, the defendant neglected the very obvious duty of taking possession of the property; and the plaintiffs, finding it in the control of the vendor, should not be made to suffer for the defendant's neglect. . . . It was not at such a distance from the place of the trade that the defendant could

Cases on Sales, 543, Cockburn, C. J., said: "These authorities fail to satisfy me that, at common law, the leaving by a vendee of goods bought, or the documents of title, in the hands of the vendor, till it suited the convenience of the former to take possession of them, would, on a fraudulent sale or pledge by the party possessed, devest the owner of his property or estop him from asserting his right to it."

1 Mass. L. 1908, ch. 237, § 25. "Where a person having sold goods continues in possession of the goods, or of negotiable documents of title to the goods, the delivery or transfer by that person, or by an agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving and paying value for the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same."

2 Dempsey v. Gardner, 127 Mass. 381, 382, and cases cited (1879). 17 Mass. 110 (1821); Burdick's Cases on Sales, 540.

Hallgarten v. Oldham, 135 Mass. 1, 9 (1883).

5 Ricker v. Cross, 5 N. H. 570 (1832).

"Crawford v. Forristall, 58 N. H. 114 (1877).

not, by ordinary diligence, have asserted title and taken possession before the plaintiffs." 1

327. Continued Possession by Vendor as Evidence of Fraud. Although, at common law, the vendee did not endanger his title by leaving the goods in the vendor's possession, yet under the statute against fraudulent conveyances his failure to take and retain possession was evidence that the alleged sale was a sham.3

2

The earlier English decisions laid down the proposition that "if a man sells goods and still continues in possession as visible owner of them, such sale is fraudulent and void as to creditors," under the statute. This doctrine was modified by later cases,5 and the rule was finally established that when, in the case of a bargain and sale, "the goods were not taken away, but were left in the hands of the man who had had them previously, that which had been thought before to make the transaction void was really no more than evidence to go to the jury of fraud." Even while the earlier doctrine obtained, it was admitted that if the transaction did not purport to be a bargain and sale, but was a contract to sell, retention of the goods until some event happened or some condition was performed, did not render the

1 Cf. Kenton v. Ratcliff (Ky.), 49 S. W. 14 (1899); Burdick's Cases on Sales, 713.

2 The statutes of 13 Eliz. c. 5, and 29 Eliz. c. 5, declared that all feigned, covinous, and fraudulent gifts, grants, alienations, etc., devised to the intent to delay, hinder, or defraud creditors and others of their just and lawful actions, etc., should be utterly void unless made upon good consideration and bona fide.

' Hall v. Feeney, 22 S. D. 541; 118 N. W. 1038 (1908), holding fraudulent and void a pretended sale by a father to his son, upon a secret trust to pay certain creditors of the father and of the proceeds.

Edwards v. Harben, 2 D. & E. 587, 596 (1788); Burdick's Cases on Sales, 550. In Twyne's Case, 3 Coke, 80 b; Moore, 638 (1601), it was resolved that a sale of goods was fraudulent because (among other reasons the seller "continued in possession, and used them as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them." In Bump on Fraudulent Conveyances (4th ed.), §§ 8597, the English cases are carefully examined.

See Martindale v. Booth, 3 B. & Ad. 498 (1832); Burdick's Cases on Sales, 552.

• Cookson v. Swire, 9 App. Cas. 653, 664 (1884); May on Fraudulent Conveyances (2d ed.), ch. 6.