| Vt. | Feb 15, 1844
The opinion of the court was delivered by
By the terms of the lease we think the plaintiff must be considered the owner of the sheep until the expiration of the full term of the lease, and the performance of all the stipulations contained in it. This is made an express condition of the title passing to Hunt. And, although Hunt took possession of the sheep, and used them as his own in some sense, it was decided, so early as the case of West v. Bolton, 4 Vt. 558" court="Vt." date_filed="1832-03-15" href="https://app.midpage.ai/document/west-v-bolton-6571453?utm_source=webapp" opinion_id="6571453">4 Vt. 558, that the title would still remain* in Bradley. This doctrine'of the right of the vendor to make the passing of the title depend upon the payment of the price, and that at a time subsequent to the delivery, thus making both the sale and the delivery conditional, has been repéatedly recognized by this court since the decision above referred to, although contrary decisions have been made in some of the states. See 13th vol. Maine R. This point, then, depends upon the construction of the terms of'the lease; that is, whether the passing of the title was to depend upon these conditions. The terms of the lease are very explicit upon this subject.
1. It is a lease for the term of sixteen years, upon condition of
2. The sheep are to become the property of Hunt at the expiration of the term, and on the performance of the conditions of the lease.
This right of the vendor to make the sale and delivery conditional is the same right recognized both in the civil and common law, and is but the true spirit of equity and justice, while the contrary rule is one of expediency and policy merely. And such rules, established upon some supposed policy, are quite as often found to produce, as to prevent, wrong and injustice. 2 Kent, 4th ed., 498, and authorities cited. Ib. 497. Barrett v. Pritchard, 2 Pick. 512. 2 B. & Ald. 329, n.
2. The second point made in the case cannot prevail. The wool was not leased. And, even if it be admitted that Bradley had no such right to immediate possession of the sheep as would have enabled him to maintain trover for any injury done to them, still he had at least an equal right with Hunt to the immediate possession of the wool, upon its being sheared ; For, 1, It is provided that the thousand pounds shall be an average quality to that sheared from the sheep, that is, the whole flock; 2, That Hunt shall not dispose of any of the wool until the plaintiff shall have obtained his thousand pounds; — thus clearly showing that the plaintiff was to have a present property in the same wool taken from the sheep. It is obvious, then, that the plaintiff was, in the proportion of one thousand pounds to the whole, a tenant in common with Hunt. And having this property, unless defeated by the assignment, he might maintain trover for the injury done to his right by a wrong doer, unless the nonjoinder of his co-tenant were objected to by plea in abatement, which was not done here. And as the plaintiff only claims to recover for his interest, no question arises in regard to damages.
The wrong .here complained of, — being a sale of the whole property on execution, — having been decided [Ladd v. Hill, 4 Vt. 164" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/ladd-v-hill-6571380?utm_source=webapp" opinion_id="6571380">4 Vt. 164,] to be a conversion of the interest of a co-tenant, the case is made out for the plaintiff, unless defeated by the assignment.
In regard to the assignment, no proof was offered except the writing on the back of the lease, or contract, and the fact that Buck had, after the execution of that writing, received the wool. But
It is certain that nothing short of an absolute sale of the entire interest of the plaintiff in the lease would defeat his right of action. The terms of the conveyance are, “ Assigned the within instrument to Samuel Buck.” Now if this were done to enable Buck to receive the wool for any number of years, to secure a debt owing to him, he would acquire no legal title to the wool until after delivery, which had not been made in this case, as it all remained at Hunt’s house, — and the thousand pounds not separated from the mass. So, if it were a gift, it would be inoperative until after delivery. And if it were done merely to enable Buck to receive the wool as agent for the plaintiff, it would defeat no right of the plaintiff, even after delivery.
The terms of the assignment alone, or in connection with the fact that Buck received the wool for some of the previous years, have no natural tendency to show an absolute sale to him, and payment of the price, which will be the least, which would defeat the plaintiff’s right of action ; for so long as the plaintiff retained any interest in the contract, the right of action in relation to it will remain in him. Crampton v. Ballard, 10 Vt. 251" court="Vt." date_filed="1838-01-15" href="https://app.midpage.ai/document/crampton-v-administrator-of-ballard-6572025?utm_source=webapp" opinion_id="6572025">10 Vt. 251. And it is even questionable whether, in the case of a contract like the present, a full sale and payment of the price will vest any legal interest in the assignee, as to the property, before delivery. It would seem to be the better opinion that the possession of a bailee of personal property, even coupled with an interest in the same, will not prevent the bailor from selling and transferring his interest. And Mr. Justice Story affirms, in the case of the Brig Sarah Ann, 2 Sumner 211, “ that he knew of no principle of law which establishes, that a sale of personal chattels is invalid, because they are not in possession of the rightful owner, but are withheld by a wrong doer.” This doctrine, however, to that extent, may be'questionable.
Judgment affirmed.