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called a “sale” or not; the fact is that the legal power to exercise certain rights of suit can now be transferred from one person to another.24*

Contractual Features.—The law does not recognize a transfer of absolute ownership in a thing except as the result of mutual intention. The original owner must intend, actually or apparently, to give up his ownership in favor of the new party, and the new one must have a like intention to receive it.25 (One possible exception is that of judicial sale wherein the ownership is transferred by order of the court regardless of the desires of the present owner.) Since agreement is essential to change of legal title, it may be said that every sale, in the sense of an accomplished transfer of title, is the result of an agreement to sell.

This agreement may be coincident with the transfer itself, or it may precede the actual transfer by a greater or less moment of time. When the agreement and transfer are coincident, the same acts of the parties serve to effectuate the transfer and to demonstrate the intent itself. If, for instance, B should walk into a store, pick up an article of merchandise, hand the proper price to the proprietor with the latter's acceptance of it, and leave the store with the article in his possession, all without a spoken word, there would coincidently both be demonstrated a mutual intent that title should be transferred and the transfer itself would be legally accomplished. 26

24-It does not seem necessary to the particular subject matter of this book to discuss in detail the levelopment of the power to transfer rights in action nor the particular limitations still existing, all of which can be found in any good work on contracts. As to the various correlated rights, other than the mere right of suit, which the transferee of a right to sue acquires, and particularly whether

he does get the fundamental right of enjoyment, see the controversial articles by Messrs. Cook and Williston in 29 Harvard L. R. 816, 30 Harvard L. R. 99, 30 Harvard L. R. 449.

25-A finder of property does not acquire an absolute ownership since his rights are subordinate to those of the original owner even though he has all the rights of owner in respect to other persons.

*See Uniform Sales Act, Section 76, "Goods".

On the other hand, the parties may enter into a present agreement that ownership of a thing shall be transferred at some time in the future. This agreement, whether carried into execution coincidently with its formation, or subsequently to be fulfilled, has all the characteristics of an ordinary contract. If it has been executed and the transfer of title effectuated in accordance with it, the rules in respect to executed contracts apply. If the transfer has not been made, the rights of the parties are determined in accordance with the general rules of contracts to be performed. There must be the usual capacity of parties, consideration, absence of fraud or mistake and the like. This preliminary and necessary contract is not discussed as such in this book, but must be studied in works particularly devoted to that subject. It is sufficient here to call attention to the fact that there must have been an effective contract to transfer the ownership, before the law will, by recognition thereof, create an actual transfer of the ownership,

26_Peeters v. State, 154 Wis. 111.

CHAPTER II

TRANSFER OF TITLE

RULES FOR DETERMINING THE PASSING OF TITLE

Passing of Title.-Assuming that the parties have so acted that there is a contract to which the law can give effect, the question at once arises whether the transfer of title has been accomplished. This is the issue on which, fundamentally, most of the litigation over sales has been based. On the answer to it rest, of course, the liabilities and rights of the parties in respect to the thing concerned.

The following discussion is necessarily divided into two sections. It is obvious, as a matter of logic, as well as a rule of law, that courts can not consider where the ownership of a thing resides unless they know what particular thing it is whose title is in question. Until the parties themselves have decided just what particular thing they intend to transfer, no court can say whether that thing has been transferred. Often the controversy is really duplex; first, whether the parties have in fact agreed upon the particular thing, and, second, whether if so agreed, they have transferred its ownership. The two issues can not possibly, with intelligence, be discussed or considered as one. The logical arrangement would be to treat the underlying question first, and to discuss the rules by which it is determined whether the particular thing has been agreed upon. But, for reasons which present themselves throughout the discussion, it seems practical wisdom to treat first the passing of title, upon an assumption that the parties have agreed upon the specific chattel affected, and then to discuss the correctness of that assumption.

Intent Governs. When the transaction concerns definite and specified thing, whose ownership the seller is legally capable of transferring, the primary and fundamental principle is, that the title will be treated as having been transferred when the parties intend it should be, and only when they so intend.*

Change of Possession Not Essential.—There are no formalities or legal conditions which must be complied with before an intent to pass title will be given effect by the courts.f (But see the discussion of the Statute of Frauds”.) It is not necessary, for instance, that possession be transferred for the ownership to be passed. Historically, the rule was otherwise; the rights of ownership were inseparable from physical possession. In the case of a gift, already commented on as a transfer of ownership without anything received in exchange, this original necessity of a change of possession still exists. Courts will not recognize title as having passed by way of gift unless and until the possession of the thing has passed to the recipient of the gift. But it is now thoroughly settled that where there is a reciprocal exchange of something, even though it be only a promise, for the thing whose title is to be transferred, a change of possession is not essential to vest in the transferee, at least as against the transferor, rights and privileges which usually connote ownership.

1-See Pollock & Maitland, II, 531; Shrimer v. Meyer, 171 Ala. 181.

112; Wade v. Moffett, 21 Ill. 110, 2-The history of this develop- 74 Am. Dec. 79; VanBrocklin v. ment is summed up by Prof. Ames Smeallie, 140 N. Y. 70, 72; Baker in 8 Harvard L. R. 252, 258. Per- v. McDonald, 74 Neb. 595, 1 L. R. kins v. Halpren, 257 Pa. 402, 101 A. (n. 8.) 337; Bradley v. WheelAtl. 741; Com. v. Hess, 148 Pa. 98, er, 44 N. Y. 495; Bertelson v. 17 L. R. A. 176; Cope's Est., 191 Bower, 81 Ind. 512; Schwab v. Pa. 589; Brewer v. Mich. Salt Oatman, 113 N. Y. S. 910; Assn., 47 Mich. 526; Sherwood v. Lickbarrow v. Mason, 2 T. R. 63; Walker, 66 Mich. 568, 11 Am. St. 1 H. Blackstone 357; 2 Id. 211;

*See Uniform Sales Act, Section 18, (1), (2), 19. See Uniform Sales Act, Section 3.

It is true that if possession is not passed to the buyer, third persons acting in good faith may acquire from the seller the rights of ownership as against even the first buyer. In a sense, therefore, until possession actually passes to the buyer the seller has still the legal power to control the right to possession. And so, in a sense, he has practical ownership. If he chooses fraudulently to sell to a third person who takes possession, that person has, in some jurisdictions, the legal right to keep possession, and, hence, has ownership. This might be put upon the ground either that the original buyer's rights are set aside in favor of the third person because he failed to take possession, or that title remained in the seller because of his continuing in possession and could still be passed to the third person. The decisions themselves are not clear as to what ground they rest on. Some of them do use expressions which make it appear that they consider “ownership” never to have passed to the original buyer because he did not have possession.

At most, however, this apparent conflict is one of terminology only-namely, how completely and exclusively

5 T. R. 683; Meade v. Smith, 16 Conn. 345; Whitcomb v. Whitney, 24 Mich. 486; Poling v. Flanagan, 41 W. Va. 191; Dixon V. Yates, 5 B. & Ad. 313, 340, "I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without delivery.

* Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained; but where, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they

would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore is to vest the property in the bargainee.” Fellows v. Bost. & Me. R. R., 78 N. H. 594, 98 Atl. 481; Johnson v. Tabor, 101 Miss. 78; Young v. Ingolsbe, 208 N. Y. 503; Townsend V. Hargraves, 118 Mass. 325; Briggs v. U. S., 143 U. S. 346.

Contrary dictum only, Georgia Marble Works v. Minor, 128 Ark. 124, 193 S. W. 498.

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