Brown v. Pierce

| Mass. | Sep 15, 1867

Bigelow, C. J.

There can be no doubt of the rule of law that a mere contract to sell personal property, without any delivery either actual or symbolical, does not pass the title as against third persons, although it may have that effect as against the vendor. As between two bona fide purchasers of the same chattels, he who first obtains delivery and possession of them has the better title against the other, notwithstanding the contract of sale of the latter with the vendor may have been prior in point of time to that of the former. This principle was recognized and adopted by this court on full consideration in Lanfear v. Sumner, 17 Mass. 110, and has been often affirmed by subsequent decisions.

But this principle cannot avail the defendant in the present case. Thompson, with whom he made the first contract of sale of the wood, had actual possession of it at the time the bargain was made. By the terms of the agreement for cutting the wood described in the two contracts of sale, “ all hard and soft wood on the lot,” with certain exceptions not material to be taken into account in this case, was “ let" to said Thompson', and he was in the actual possession of it, so that when the contract of sale was entered into between him and the defendant, no delivery was necessary or could be made by the latter in order more effectually to pass the title.

IN or can the fact that Thompson procured the sale by a fraudulent misrepresentation in any way affect the rights of the par ties to this suit. Fraud does not, of itself, render a sale void but only voidable at the election of the vendor. Until avoided or rescinded the contract of sale remains in force and the title to the property passes to the vendee. The vendor may, if he sees fit, set it aside on the ground that it was procured by fraud; but unless a rescission is made, the sale takes effect and the property passes. Thayer v. Turner, 8 Met. 550. Chit. Con. (10th Am. ed.) 815. In the present case there is nothing to show that the defendant has done any act to disaffirm Tbompson’s title on the ground that the sale was procured by fraud. It does not even appear that any notice of an intention to rescind the sale and claim the property has been given to Thompson by the defendant. So far as the facts are disclosed, the contract of sale between them stands as it did on the day it was entered into. On the state of facts, concerning which there was no controversy at the trial, it is clear that the defendant had no title to the wood which he had previously sold to Thompson, and of which the latter was in possession at the time of the subsequent sale of the same wood to the plaintiff. The title of the plaintiff has, therefore, wholly failed, and he may well maintain this action on the implied warranty of title into which the defendant entered on the sale of the wood, to recover the value of that for which he had paid, but to which he obtained no title. Chit. Con. (10th Am. ed.' 471. Exceptions overruled.