30 Pa. 539 | Pa. | 1858
The opinion of the court was delivered by
— The question, what constitutes sufficient change of possession to perfect a sale of chattels, has been fruitful of litigation here and elsewhere. To attempt a review of the cases is like entering a wilderness. In Sturtevant v. Ballard, 9 Johns. 337, the genius of Chief Justice Kent struck out the first clear track. Seven years afterwards, this court followed with Clow v. Woods, 5 S. & R. 275, improving on what he had done. Clow v. Woods was a great case for us in Pennsylvania, and saved us from a confusion which has tormented the courts of several other states. It led to that long train of decisions, founded as well on the common law as on the statutes of Elizabeth, which say that whether the sale be absolute or conditional, a change of possession must take place. If possible, the delivery must be actual: if the nature and bulk of the article preclude this, then it must be constructive, a better term, I think, than symbolical, borrowed from the ancient ceremony of feudal investiture. In every case, every species of divestiture which can give the world notice, should be resorted to. When this principle is practically employed in trying a cause, the judge can, from the necessity of the case, do but one of two things: either come squarely up, and pronounce the sale fraudulent and void, which the court in this case refused to do; or refer to the jury the question whether the change of possession was all that the nature of the property permitted, and that was the shape which this charge took. In Massachusetts and Maine, perhaps in Ohio and Tennessee, the question of fraud seems to be invariably referred to the jury, as such questions always were before the statutes 13th and 27th Elizabeth. In Pennsylvania, the court has retained its hold over the facts to a somewhat greater extent: as where in Carpenter v. Mayer, 5 Watts 483, there was unreasonable delay in giving possession of furniture; or, as in Eagle v. Eichelberger, 6 Watts 29, where the delay was held by the court inconsistent with the nature of the articles purchased, and the convenience of the parties in removing them; or, as in Young v. McClure, 2 W. & S. 147, where the oxen were retained by the purchaser but for an hour, and afterwards worked by the seller; or, as in Hart v. McFarland, 1 Harris 182, where the transaction was condemned as bearing the impress of fraud on its front; or, as in Hugus v. Robinson, 12 Harris 9, where it is said the court ought to pronounce the sale void, when on its face the delivery is merely feigned, and no account is given of its suspicious appearance: 2 Whart. 302; 10 S. & R. 201, 419. But where the transaction,
Judgment affirmed.