and crew of the schooner Florence Reed on the voyage upon which she is about to proceed from the port of Gloucester to the Grand Banks, at the rate of five cents and a quarter per pound for flitched halibut, to be delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester, at their wharf. And we, the said John Low & Son, hereby acknowledge the receipt of $1,500 in part payment for the halibut that may be caught by the master and crew of said schooner on said voyage."

In July, 1869, proceedings in bankruptcy were begun against John Low & Son in the district court of the United States for this district, in which they were adjudged bankrupts on August 6th, and on August 20th these defendants were appointed the assignees in bankruptcy, and the deed of assignment was executed to them. On Saturday, August 14th, the Florence Reed arrived at the port of Gloucester on her home voyage, and was hauled to the plaintiffs' wharf; and on the morning of Monday, August 16, the United States marshal took possession of the vessel and cargo under a warrant issued to him on August 6th in the proceedings in bankruptcy, and transferred his possession to the defendants upon their appointment.

The catch of the schooner consisted of about 40,000 pounds of halibut, and of some codfish. The plaintiffs demanded the halibut of the defendants, and offered at the same time to pay the price of it at the rate of five and a quarter cents per pound, less the $1,500 already paid. The defendants refused the demand; and the plaintiffs then replevied such a quantity of the halibut as represented the amount of $1,500 at that rate per pound, and offered to receive the rest of the halibut and pay for it at the same rate, but the defendants refused to acknowledge any right whatever of the plaintiffs in or to the fish.

If on these facts the plaintiffs were entitled to recover, they were to have judgment for nominal damages; but, if otherwise, the defendants were to have judgment for a return, with damages equal to interest at the annual rate of six per cent. on the appraised value of the fish replevied.

MORTON, J. By the decree adjudging John Low & Son bankrupts, all their property, except such as is exempted by the bankrupt law, was brought within the custody of the law, and by the subsequent assignment passed to their assignees. Williams v. Merritt, 103 Mass. 184, 4 Am. Rep. 521. The firm could not, by a subsequent sale and delivery, transfer any of such property to the plaintiffs. The schooner which contained the halibut in suit arrived in Gloucester August 14, 1869, which was after the decree of bankruptcy. If there had been then a sale and delivery to the plaintiffs of the property replevied, it would have been invalid. The plaintiffs therefore show no title to the halibut replevied, unless the effect of the contract of April 17, 1869, was to vest in them the property in the halibut before the bankruptcy. It seems to us clear, as claimed by both parties, that this was a contract of sale, and not a mere executory agreement to sell at some

future day. The plaintiffs cannot maintain their suit upon any other construction, because, if it is an executory agreement to sell, the property in the halibut remained in the bankrupts, and, there being no delivery before the bankruptcy, passed to the assignees. The question in the case therefore is whether a sale of halibut afterwards to be caught is valid, so as to pass to the purchaser the property in them. when caught.

It is an elementary principle of the law of sales that a man cannot grant personal property in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale. Thus it has been held that a mortgage of goods which the mortgagor does not own at the time the mortgage is made, though he afterwards acquires them, is void. Jones v. Richardson, 10 Metc. 481. The same principle is applicable to all sales of personal property. Rice v. Stone, 1 Allen, 566, and cases cited; Head v. Goodwin, 37 Me. 181.

It is equally well settled that it is sufficient if the seller has a potential interest in the thing sold. But a mere possibility or expectancy of acquiring property, not coupled with any interest, does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property of which the thing sold is the product, growth, or increase. Having such interest, the right to the thing sold, when it shall come into existence, is a present vested right, and the sale of it is valid. Thus a man may sell the wool to grow upon his own sheep, but not upon the sheep of another; or the crops to grow upon his own land, but not upon land in which he has no interest. 2 Kent, Comm. (10th Ed.) 468 (641) note a; Jones v. Richardson, 10 Metc. 481; Bellows v. Wells, 36 Vt. 599; Van Hoozer v. Cory, 34 Barb. (N. Y.) 9; Grantham v. Hawley, Hob. 132.

The same principles have been applied by this court to the assignment of future wages or earnings. In Mulhall v. Quinn, 1 Grav. 105, 61 Am. Dec. 414, an assignment of future wages, there being no contract of service, was held invalid. In Hartley v. Tapley, 2 Gray, 565, it was held that, if a person is under a contract of service, he may assign his future earnings growing out of such contract. The distinction between the cases is that in the former the future earnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right to them, though contingent, and liable to be defeated, is a vested right. In the case at bar, the sellers, at the time of the sale, had no interest in the thing sold. There was a possibility that they might catch halibut; but it was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential possession of or interest in the fish, and that the sale to the plaintiffs was void.

The plaintiffs rely upon Gardner v. Hoeg, 18 Pick. 168, and Tripp v. Brownell, 12 Cush. 376. In both of these cases it was held that the lay or share in the profits, which a seaman in a whaling voyage agreed

to receive in lieu of wages, was assignable. The assignment in each case was, not of any part of the oil to be made, but of the debt which, under the shipping articles, would become due to the seaman from the owners at the end of the voyage. The court treated them as cases of assignments of choses in action. The question upon which the case at bar turns did not arise, and was not considered. Judgment for the defendants.8

8 See Williston's comment on this case in his article, Delivery as a Requisite in the Sale of Chattel Property, 35 Harv. Law Rev. 797, 813.

As to the equitable rights of a purchaser or mortgagee of future goods, see Williston, Transfer of After-Acquired Personal Property, 19 Harv. Law Rev. 557. Nearly all of the cases arise from transfers of future goods by way of security, and the subject is generally dealt with in the course on mortgages.

The leading case is Holroyd v. Marshall, 10 H. L. C. 191 (1862). The Holroyds purchased all the machinery in Taylor's mill. The machinery was not removed and it was agreed that Taylor should buy it back for £5,000. On September 20, 1858, a deed was executed (which was duly registered as a bill of sale), assigning the machinery to Brunt in trust for Taylor until a certain demand for payment should be made upon him, and then in case he should pay for him absolutely, but in case of default the machinery to be sold by Brunt and the proceeds to the amount of £5,000, with interest, to be paid to the Holroyds, balance to Taylor. The deed contained a covenant that all machinery which should be placed in the mill in addition to or substitution for the original machinery should be subject to the same trusts. Taylor, who remained in possession, sold some of the old machinery and introduced some new machinery, of which he rendered an account to the Holroyds before April, 1860; but no conveyance was made of the new machinery to them, nor was any act done by them, or on their behalf, to constitute a formal taking of possession of the added machinery. On April 2, 1860, the Holroyds demanded of Taylor the payment of the £5,000 and interest, and, no payment being made, they took possession of the machinery on April 30 and advertised it for sale by auction on May 21. Two writs of fieri facias against Taylor were executed, on April 14 and May 10, respectively, and the property was sold by the sheriff on May 25. The only part of the machinery claimed by the execution creditors consisted of those things which had been purchased by Taylor since the date of the bill of sale. The Holroyds filed a bill praying for an assessment of damages and general relief, and it was finally decided in the House of Lords that the title of the Holroyds to the added and substituted machinery should prevail over that of the execution creditors. The Lord Chancellor (Lord Westbury) said:

"My Lords, the question is, whether as to the machinery added and substituted since the date of the mortgage the title of the mortgagees, or that of the judgment creditor, ought to prevail. It is admitted that the judgment creditor has no title as to the machinery originally comprised in the bill of sale; but it is contended that the mortgagees had no specific estate or interest in the future machinery. It is also admitted that if the mortgagees had an equitable estate in the added machinery, the same could not be taken in execution by the judgment creditor. It is quite true

that a deed which professes to convey property which is not in existence at the time is as a conveyance void at law, simply because there is nothing to convey. So in equity a contract which engages to transfer property, which is not in existence, cannot operate as an immediate alienation merely because there is nothing to transfer.

"But if a vendor or mortgagor agrees to sell or mortgage property, real or personal, of which he is not possessed at the time, and he receives the consideration for the contract, and afterwards becomes possessed of property answering the description in the contract, there is no doubt that a court of equity would compel him to perform the contract, and that the contract would, in equity, transfer the beneficial interest to the mortgagee or pur

CHAPTER II

TRANSFER OF PROPERTY AND TITLE

SECTION 1.-UNCONDITIONAL CONTRACT TO SELL SPECIFIC GOODS-IN GENERAL

WILLISTON ON SALES (2ND ED.)

§ 260. It may be assumed safely that when the law was first much developed in England, the rule of the Roman law requiring delivery in order to effect a transfer of the property was accepted.1 But it was not long before payment of the price was also regarded as sufficient to effect the transfer of the property. Professor Ames has traced this development: 2

"Detinue would also lie against a seller upon a bargain and sale. Here it was the payment of the purchase money that as a rule constituted the quid pro quo for the seller's duty to suffer the buyer to take possession of the chattel sold. If the bargain was for the reciprocal exchange of chattels, the delivery of the chattel by the one party would be as effective a quid pro quo as payment of purchase money to support an action of detinue against the other party.

chaser immediately on the property. being acquired. This, of course, assumes that the supposed contract is one of that class of which a court of equity would decree the specific performance. If it be so, then immediately on the acquisition of the property described the vendor or mortgagor would hold it in trust for the purchaser or mortgagee, according to the terms of the contract. For if a contract be in other respects good and fit to be performed, and the consideration has been received, incapacity to perform it at the time of its execution will be no answer when the means of doing so are afterwards obtained.

"Apply these familiar principles to the present case; it follows that immediately on the new machinery and effects being fixed or placed in the mill, they became subject to the operation of the contract, and passed in equity to the mortgagees, to whom Taylor was bound to make a legal conveyance, and for whom he, in the meantime, was a trustee of the property in question.

"There is another criterion to prove that the mortgagee acquired an estate or interest in the added machinery as soon as it was brought into the mill. If afterwards the mortgagor had attempted to remove any part of such machinery, except for the purpose of substitution, the mortgagee would have been entitled to an injunction to restrain such removal, and that because of his estate in the specific property. The result is, that the title of the appellants is to be preferred to that of the judgment creditor."

Lord Wensleydale and Lord Chelmsford delivered concurring opinions.

1 See an article by Prof. Richard Brown, 15 Juridical Review, 391, 395. This rule has persisted in regard to gifts for the validity of which delivery is still essential. Cochrane v. Moore, 25 Q. B. D. 57 (1890).—Williston. 28 Harv. Law Rev. 252, 258.-Williston.

"It was hardly an extension of principle to treat the delivery of the buyer's sealed obligation for the amount of the purchase money as equivalent to actual payment of money, or delivery of a chattel, and accordingly we find in Y. B. 21 Edw. III, 12-2, the following statement by Thorpe, Chief Justice of Common Bench in 30 Edw. III: 'If I make you an obligation for £40. for certain merchandise bought of you, and you will not deliver the merchandise, I cannot justify the detainer of the money; but you shall recover by a writ of debt against me, and I shall be put to my action against you for the thing bought by a writ of detinue of chattels.' But it was a radical departure from established traditions to permit a buyer to sue in detinue when there was merely a parol bargain of sale without the delivery of a physical res of any sort to the seller. But this striking change had been accomplished by the time of Henry VI. The new doctrine may be even older, but there seems to be no earlier expression of it in the books than the following statement by Fortescue, C. J.: 'If I buy a horse of you, the property is straightway in me, and for this you shall have a writ of debt for the money, and I shall have detinue for the horse on this bargain.' From the mutuality of the obligations growing out of the parol bargain, without more, one might be tempted to believe that the English law had developed the consensual contract more than a century before the earliest reported cases of assumpsit upon mutual promises. But this would be a misconception. The right of the buyer to maintain detinue, and the corresponding right of the seller to sue in debt, were not conceived of by the medieval lawyers as arising from mutual promises, but as resulting from reciprocal grants-each party's grant of a right forming the quid pro quo for the corresponding duty of the other."

The law of so remote a period, however, need not affect a discussion of existing law. It is clear that before the seventeenth century it was possible for the seller to transfer the property, not only without delivery, but without payment of the price or earnest money. This could probably only be done, however, if credit was expressly given by the seller."

8 Y. B. 20 Hen. VI, 35-4; Y. B. 21 Hen. VI, 55-12. See, to the same effect, 37 Hen. VI, 8-18, per Prisot, C. J.; Y. B. 49 Hen. VI, 18-23, per Choke, J., and Brian, J.; Y. B. 17 Edw. VI. 1-2. See, also, Blackburn, Contract of Sale, 190-196.-Ames.

4 Pecke v. Redman, Dy. 113 (1555), appears to be the earliest case of mutual promises.-Ames.

5 See Noy's Maxims, c. XLII (1641). See, further, infra, § 341.-Williston.. See, further, Williston, Delivery as a Requisite in the Sale of Chattel Property, 35 Harv. Law Rev. 797.