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which go to make up the concept of ownership were predicated upon the fact of physical possession, it is true that “ownership” by more than one person of a single chattel would have been more or less paradoxical. Philosophically it is perhaps demonstrable that two persons can not simultaneously "possess” a single thing any more than two spaces can be simultaneously occupied by it.106. But rights and obligations are no longer founded on actual physical possession. The history of the change would be out of place in a work of this type and it is sufficient to say that several persons may have a co-ownership, an “ownership in common” in a single thing.
Although one who owns a thing obviously can not invest another with rights in respect to a particular part of that thing until he indicates in some way the part to which the new rights shall apply, nevertheless the owner of a thing can invest another with rights in respect to the entire thing without thereby necessarily divesting himself of all rights. So long as we know with what rights and liabilities he has invested the second person, it is immaterial by what name they be collectively called. Usually the courts do speak of them as rights of "ownership in common”. The transaction is usually called a "sale" and the buyer is said to become an owner or tenant in common. 107*
106—For a discussion of the v. Stowell, 51 N. Y. 70, something difference of ideas as to concur- more than tenancy in common. rent possession and ownership of As to the rights themselves, reland and of chattels see Pollock & gardless of their name as owner. Maitland, Vol. 2, p. 180 ff.
ship, or otherwise, it has been 1074-Loomis v. O'Neal, 73 Mich. held that one in whom the owner 582; In Kimberly v. Patchin, 19 has created an interest in an un. N. Y. 330, the court held that the specified part of a mass of grain, or buyer of an undistinguished num- other fungible goods, may mainber of bushels of a larger mass of tain assumpsit against the original wheat acquired an ownership, but
Loomis v. O'Neal, 73 said that it was something more Mich. 582, “The refusal to recog. than a tenancy in common; Lobdell nize the right of the co-tenant
*See Uniform Sales Act, Section 6, (1), (2), 76, “Fungible goods."
-Intent of Parties. It thus appears that the law recognizes a possibility that rights or liabilities such as usually connote ownership may exist coincidentally in two or more persons in respect to a single undivided mass of property. The only question to be solved, therefore, is whether the sale of a certain quantity of a larger mass is intended by the parties to transfer such an “undivided ownership” in the whole mass.
It does not matter what the rights should be called, the question is whether the parties have intended that the buyer shall have rights in respect to the whole mass itself, as distinct from mere rights of action against the seller personally.108
amounts to a conversion. The tort may be waived, and assumpsit brought"; or may have an action against the other for damages for conversion, Lobdell v. Stowell, 51 N. Y. 70; Kimberly v. Patchin, 19 N. Y. 330; or an action of trover, Stall v. Wilbur, 77 N. Y. 158.
It has even been held that a "tenant in common" may bring replevin for his own part, the court saying, “It has been quite generally held that tenants in common or persons who are separate owners of articles stored in mass, such as corn, wheat, coal, logs, etc., each article being of like nature and quality with the others, may have replevin for his proportionate part of the intermixed chattels if the same is wrongfully detained and the action is necessary for the maintenance of his rights, subject to deductions for any loss or waste properly falling to his share while the property remained in mass.” Manti City Savings Bank v. Peterson, 33 Utah 209, 126 Am. St. 817, 93 Pac. 566; Piazzek v. White, 23 Kan. 621, 33 Am. Rep. 211; Halsey v. Simmons, 85 Ore. 324, 166 Pac. 944,
As recognizing the possibility of rights in respect to one particular thing in two persons simultaneously, see Gardiner V. Suy. dam, 7 N. Y. 357; Seldomridge v. Bank, 87 Neb. 531, 127 N. W. 871; 30 L. R. A. (n. s.) 337; Brownfield v. Johnson, 128 Pa. 254, 6 L. R. A. 48, dictum. “The weight of American authority supports the proposition that when property sold to be taken out of a specific mass of uniform quality, title will pass at once upon the making of the contract, if such appears to be the intent." Kimberly v. Patchin, 19 N. Y. 330, “None of (the deci. sions) go to the extent of holding that a man cannot, if he wishes and intends so to do, make a perfect sale of a quantity without actual separation, where the mass is ascertained by the contract and all parts are of the same value and undistinguishable
each other." Tobin v. Portland Mills Co., 41 Ore. 266, depositors of wheat in a warehouse called “tenants in common thereof, having such an undivided interest therein as the quantity stored by each bore to the amount deposited." Bretz v. Diehl, 117 Pa. 589.
-Presumption of Intent. The intention to create rights to the property itself need not be expressed. The courts may conclude such to have been the intention from an examination of the circumstances. In Hurff v. Hires it appeared that Hurff had bought from Heritage 200 bushels of corn which was part of a mass of 400 or 500 bushels belonging to Heritage. Nothing whatever appears to have been said in regard to legal rights or liabilities. Before there was any separation of the corn sold from the mass, Hires, a sheriff, levied upon the whole mass as being the property of Heritage. Despite the levy Heritage separated 200 bushels from the mass and delivered it to Hurff, and Hires brought an action of trover. The lower court decided in favor of the sheriff
on the theory that though the purchaser bought the corn and paid the price, the title did not pass to him, because the quantity sold was not separated from the original bulk until after levy, and that therefore the whole still remained liable to seizure as the property of the vendor.” This holding was reversed by the Supreme Court, which said, “It is the general rule that the property in goods and chattels passes under the contract of sale according to the intention of the parties. The difficulty in the application of this rule is in determining under what circumstances the parties shall be considered as having evinced an intention that property in the subject-matter of sale should pass from the vendor to the purchaser.” After pointing out that intention to pass title is found readily or reluctantly according to the degree of protection thought due the seller, the court continued, “The tendency of modern decisions is to give effect to contracts of sale according to the intention of the parties to a greater extent than is found in the older cases, and to engraft upon the rule that property passes by the contract of sale, if such be the intention, fewer exceptions, and those only which are founded upon substantial considerations affecting the interest of parties.” The court held accordingly that there was no legal reason why an ownership of the corn itself could not have passed to the buyer even before separation of the mass and that the question as to whether the parties so intended should have been left to the jury.
108-It must be borne in mind that if the sale is merely of certain property, described, but not identified even to the extent of being part of a larger definite mass, no title, even an undivided one, can pass. It is impossible to conceive of even an ownership in common in a mass unless the
mass itself is known. Many cases turn in reality upon lack of iden. tity of even a larger mass crom which property sold is to be taken, although they appear on casual reading to hold that title in com. mon could not pass.
109–11 Vroom. (N. J. L.) 581, 29 Am. Rep. 282.
In Kimberly v. Patchin, 110 an intent to pass an actual ownership by the sale of 6,000 bushels of grain out of a mass of 6,240 was deduced by the court-without reference to a jury-from the fact that the owner not only gave a bill of sale for 6,000 bushels but thereafter stated in writing that he held 6,000 bushels of grain as bailee of the buyer.
Where there are no particularly indicative facts, except the fact that the sale is of part of a mass, the courts are in disagreement as to what conclusion of intent they will draw. In England it is the consistent policy to presume that there was no intent to create any ownership in the undivided mass. An early case, much referred to in American decisions, 111 did hold that a sale of 10 tons of oil, to be taken from a tank containing 40 tons, gave the buyer a right of action in trover against the seller, despite the fact that the part sold had never been in any way distinguished from the whole. This case, however, has not been followed in England.112
110-19 N. Y. 330.
111-Whitehouse V. Frost, 12 East 614.
112-Gillett v. Hill, 2 C. & M.
530 dictum; Aldridge v. Johnson, 7 El. & Bl. 885 (sale of grain); Knights v. Whiffen, L. R. 5 Q. B. 660 (sale of grain); Wallace v. 113-Gillett v. Hill, 2 C. & M. 530; Aldridge v. Johnson, 7 El. & Bl. 885; Knights v. Whiffen, L. R. 5 Q. B. 660.
Estoppel.—But, nevertheless, when the action is by the buyer of an unseparated part of a mass against the possessor of the whole, even the English courts show a readiness to allow recovery on the ground that the possessor has done something, however slight it may be, to estop himself from denying that the goods sold have actually been separated.
-Fungible Goods.-In America a distinction is made between sales of part of “fungible” goods and those which are not fungible. By “fungible” or “homogeneous” is meant goods which are generally considered in terms of measurement rather than of individual units. Grain, for instance, is thought of in bushels rather than in numbers of kernels, and is considered as fungible. Hams and automobiles, however, are sold by numbers of individual units, not by measures-full, and bricks by numbers of bricks, not by tons. Such masses are not fungible. In case of sale of part of a mass of fungible goods there is, in America, a tendency to presume that an undivided ownership was intended to pass. 114
Breeds, 15 East 522, 12 Rev. R. 423, 50 tons oil out of 90 tons in various casks-distinguished from Whitehouse v. Frost on ground that it was custom for seller to measure water and "foot-dirt" and fill up casks; White v. Wilks, 5 Taunt 176, 14 Rev. R. 735, 20 tons oil out of "vendor's stock" which was in various casks, notes that oil was not in single container; Bush v. Davis, 2 M. & S. 397, 15 Rev. R. 288, 10 out of 18 tons of flax in mats; Shepley v. Davis, 5 Taunt 617, 15 Rev. R. 598, 10 out of 30 tons of hemp.
114-Cushing v. Breed, 14 Allen (Mass.) 376, 92 Am. Dec. 777; Chapman v. Shepard, 39 Conn. 413, sacks of meal; Welch v. Spies, 103 Iowa 389; Cloke v. Shafroth, 137 Ill. 393; McReynolds v. People, 230 Ill. 623 dictum; Mchts. Bk. V. Hibbard, 48 Mich. 118; Waldron v. Chase, 37 Me. 414; Kaufman v. Schilling, 58 Mo. 218; Halsey V. Simmonds, 85 Ore. 324, 166 Pac. 944; Seldomridge v. Bank, 87 Neb. 531, 127 N. W. 871, 30 L. R. A. (n. 8.) 337; Brownfield v. Johnson, 128 Pa. 254, 6 L. R. A. 48; Russell v. Carrin on, 42 N. Y. 118; Cassinelli v. Humphrey Supply Co., 43 Nev. 208, 183 Pac. 523, extended to sale of part of a larger mass of hay; The Iron Cliff Co. V. Buhl, 42 Mich. 86, iron ore.