Lead Opinion
In this case no question concerning actual fraud or fraudulent conveyance, is presented for our determination.
On the trial before the jury, the court charged that retaining posséssion by the vendor was prima fade evidence of fraud, but that the possession might be explained. Under this instruction
, “Delivery of goods to a carrier, is equivalent to a delivery to the purchaser.”
“ Symbolical delivery will in many casos be sufficient, and equivalent in its legal effect to actual delivery.”
“ Delivery of the key of a warehouse in which goods sold are deposited, transfer’s the property.” So the delivery of the receipt of the storekeeper for the goods.
*In the sale of a ship at sea the delivery must be symbolical. If the vendor take the vendee within sight of ponderous articles and shows them to him, it amounts to a delivery. Delivery of a sample has been sufficient to transfer the property. 2 Kent’s Com. 393-395. That the property passes to the buyer whore the sale is perfected without delivery, see 2 Kent, 392 ; 1 Swift’s Dig. 378, 380, 3 Johns. 170, authorities cited by the plaintiff’s counsel.
The delivery in a case like the present, where the mortgagee if he were to take possession, must, according to the understanding of the parties, immediately restore it, is so purely a matter of form, attended with no real benefit, that there seems to be but little reason for requiring the act. From the cases above noticed, and others of a similar character, it would be implied that, according to the general rule, a delivery is necessary to constitute or to prove a perfect change of property. The civil law required a delivery, and so it has been said did the common law. But we think delivery not necessary by the common law to pass the title to personal property; that a sale without it is complete as between the parties, though it be not so as to affect the interests in certain cases of third persons. Since the case in 5 Ohio, above referred to, the law has been settled in this state as to third persons also. We think, therefore, that delivery is not essential, and that
The judgment will be reversed.
Dissenting Opinion
dissenting. I have always been of the opinion, that on a sale of personal property, whether absolute or conditional, a delivery, either actual or symbolical, is necessary to transfer the title, so as to defeat a subsequent bona fide purchaser for valuable consideration without notice.
In Twyne’s case it was held, that if possession did not accompany and follow the deed, the sale was fraudulent per se as against creditors and subsequent purchasers. In this *state the rule of the English and New York and United States courts has been modified. We now follow the recent decisions of those courts, and regard the retaining of (he possession after a sale as only prima facie evidence that it is fraudulent.
But that A. may set down in his office and make to B. a mortgage of personal property, which is not present and not even delivered to B., and thereby vest in him a title which will enable B. to defeat C. a bona fide purchaser, to whom A. may subsequently sell and deliver the same property, is just what I do not believe should be permitted.
I am aware that some writers have said that a sale of personal property without delivery is good and vests the title in the purchaser, and there may be decisions of cases by courts who follow the digests, the same way.
I would neither follow the digests nor such courts, upon a matter which is a departure from sound principles. I bow to the authorities in all cases, but by authorities, I mean the adjudication of respectable courts of last resort, whose decisions are based upon doctrines and principles that would do equal justice between man and man. It should be held that the right of Hooben to tho oxen in controversy, is inferior to the right of Bidwell. That Hooben’s right until delivery, was a mere right in contract, not a right to the property as against third persons. It was like a contract of sale where the goods have been stopped in transitu before delivery, no title vested.
Although a symbolical delivery in one sense may seem a mere farcical thing of little moment, something which might well be dispensed with, and which subserves no good purpose, yet fre
I look upon the rule that a delivery of some kind is necessary *to perfect a sale of personal property, as a very ancient one. If I could discover no reason why it was ever adopted, or why it should further be adhered to, I should not be willing to obliterate it so long as it produces no mischief. Ancient rules of law are like ancient landmarks, and the chances are ten to one, that in some way, or at some time, they will be of use.