of an owner of land over future crops have arisen in cases concerning mortgages rather than sales, but the same principles are applicable, as far as the transfer of the property is concerned. The owner of land may sell or mortgage a crop to be grown thereon (3), although in some states a sale or mortgage is not valid unless the crop has been planted. In Nebraska, the rule is in doubt, the cases being confused (4). The modern cases are generally based upon the early case of Grantham v. Hawley (5), where the lessor in a twenty-one year lease, beginning in April, covenanted that the leesee might carry away such corn as should be growing upon the ground at the end of the term. It was held that this was a valid grant of the corn that should be growing upon the land twenty-one years hence.

§ 31. Same: Actual possession taken. Estoppel. Where future property is sold, and the buyer takes possession after the property comes into existence, there is in that case a new intervening act and the property passes. The intention of the parties that the future property shall pass is not effectual unless possession of the property is taken, when it comes into existence. The title to property sold may vest in the purchaser on the ground of estoppel. If the seller afterwards acquires title to the property purported to be sold by him, he will be estopped to deny that he had title when he made the

(3) Dickey v. Waldo, 97 Mich., 255; 23 L. R. A., 449, and note. (4) Brown v. Neilson, 61 Neb., 765; Sporer v. McDermott, 69 Neb., 533.

(5) Hobart, 132.

sale. Of course this estoppel can never take effect if the seller never acquires any title. The title passes to the purchaser upon the acquisition of title by the seller. But, if the seller, after he acquires title, but while still in possession of the goods, sells the goods to an innocent purchaser without notice of the former sale, this purchaser will acquire title to the property. See § 77, below.

§ 32. Future sales in equity. While, at law, property in which the seller has no present interest can not be sold, so as to pass any property to the purchaser until he actually takes possession, an assignment may be made to which effect will be given in equity. The moment the property comes into existence, or is acquired by the assignor, the assignment takes effect upon it. In Holroyd v. Marshall (6), the leading case, one Taylor, a manufacturer, sold the machinery in his mill as security for his indebtedness, the deed containing a covenant that all machinery placed in the mill, in addition to and in substitution for that covered by the bill of sale, should be subject to the assignment. Taylor remained in possession. He sold and exchanged some of the old machinery and introduced some new machinery, of which he rendered an account to the assignees, but no conveyance was made of the new machinery to them nor was any possession taken by or for them. Execution creditors of Taylor levied upon the machinery, purchased by Taylor after the date of the assignment, and sold it. The assignees brought their bill against the sheriff. It was held that

(6) 10 H. L. C., 191.

the whole machinery in the mill, including the added and substituted articles, at the time of the execution, vested in the assignees by virtue of the assignment. They were entitled to the after acquired property in preference to the judgment creditors, although there was no new intervening act on their part. The deed, together with the bringing of the machinery on the premises, was sufficient to complete the title. The equitable title prevails, even though the judgment creditor has no notice of it.

The rule laid down in Holroyd v. Marshall, that the equitable interest in the goods passes to the purchaser upon the acquisition of the goods by the seller, is followed by a majority of the decisions in this country (7). There are many cases contra (8), holding especially that a sale of goods is not valid against creditors unless possession is taken.

§ 33. Contract to sell future goods. There is nothing illegal at common law about a contract to sell goods afterwards to be acquired by the seller. It is a contract, however, that may easily be a subject of gambling; and such a contract is illegal as a gambling contract, where the parties do not intend that it shall ever be carried out, but intend merely that it shall be broken, and that the difference between the contract price and the market price of the goods, at the time of delivery, shall be paid. A contract for the sale of goods, which the seller is to acquire by purchase, is a valid contract if the parties act

(7) See especially: Mitchell v. Winslow, 2 Story, 630; Kribbs v. Alford, 120 N. Y., 519; Lundlum v. Rothschild, 41 Minn, 218.

(8) Blanchard v. Cooke, 144 Mass., 207.

in good faith, or if one of the parties acts in good faith. The Sales Act contains the following provision: "1. The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this act called 'future goods.' 2. There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. 3. Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods"(9).

§ 34. Sale of undivided shares of goods. "There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to affect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares" (10).

This provision of the Sales Act is simply declaratory of what has been the law from the earliest times. A tenant in common of goods may sell his interest therein to a co-tenant or a third person. The buyer becomes a tenant in common with the other owners. The goods are at the risk of all the co-owners in proportion to their interests therein.

"In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite number,

(9) Sales Act, sec. 5.
(10) Sales Act, sec. 6.

weight, or measure of the goods in the mass, and though the number, weight, or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight, or measure bought bears to the number, weight, or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears" (11).

By "fungible" goods is meant goods of such a nature that they may be replaced by other goods of equal quantity and quality; such as grain, coal, and wine. The term is defined by the Sales Act as follows: " "Fungible goods' means goods of which any unit is from its nature or by mercantile usage treated as the equivalent of any other unit" (12). All of the holders of receipts of grain stored in an elevator are tenants in common of the grain therein, in the proportion that the receipts of each bear to the total of the receipts outstanding. The sale of a certain quantity out of an undetermined mass transfers the property in that quantity. A part of the mass may be sold without actual separation, where the mass is ascertained and all parts are of the same value and undistinguished from one another. Where the owner of two piles of wheat containing 6,249 bushels, sold 6,000 bushels, giving the buyer a receipt that he held that amount for him, the

(11) See note 10.

(12) Sales Act, sec. 76.