Ludwig v. Fuller, 17 Me. 162

Ludwig v. Fuller

17 Me. 162 | Me. | 1840

*166The opinion of the Court was drawn up by

Shepley J.

The general rule of law is, that the payment of the price is sufficient to complete the sale between the seller and purchaser; but, as it respects a second purchaser or creditor having no notice, a delivery is necessary, Edwards v. Harden, 2 T. R. 587; Mair v. Glennie, 4 M. & S. 240; Lanfear v. Sumner, 17 Mass. R. 117; Shumway v. Rutter, 7 Pick. 56; Cobb v. Haskell, 14 Maine R. 303. The question what constitutes a delivery is still left open, and it is often of difficult solution.

Where the goods are so situated, that a delivery cannot be made at the time of sale, as a vessel at sea, a delivery of such evidence of title, as the seller possesses, is sufficient until the purchaser can obtain possession. Lempriere v. Pasley, 2 T. R. 485 ; Gardner v. Howland, 2 Pick. 603.

And where goods, though not at sea, are hot in the actual, but in the constructive, possession of the seller, as goods in another’s warehouse, or logs in a river ; and where it would be very difficult on account of the weight or bulk, as a vessel on the stocks, and in other cases of a peculiar character, what is denominated a symbolical delivery is sufficient, and this requires the performance of such an act as shews, without any other act to be performed, that the purchaser has a right to take possession, and that the right of the seller to control the property has terminated. Harman v. Anderson, 2 Camp. 243 ; Manton v. Moore, 7 T. R. 67; Hollingsworth v. Napier, 3 Caines’ R. 182; Wilkes v. Ferris, 5 Johns. R. 335; Jewett v. Warren, 12 Mass. R. 300 ; Badlam v. Tucker, 1 Pick. 389; Holmes v. Crane, 2 Pick. 607.

The reason why a sale, when the price is paid, is not good as respects other parties without a delivery is, that the law regards the purchaser as in fault, and as acting unfairly and fraudulently in allowing the seller, by retaining the possession, to hold out the apparent evidence of ownership, and thereby induce others to purchase or to credit him to their injury. Twyne’s case, 3 Co. 80 ; Lingam v. Briggs, 1 B. & P. 87. Hence if a third party claiming title, had notice of such sale before his rights accrued, he cannot allege any defect in the sale for want of a delivery, because he was not injured by it. Steel v. Brown, 1 Taunt. 381; Wooderman v. Baldock, 8 Taunt. 676; Robinson v. McDonnell, 2 B. & A. 134.

*167It must be admitted that the strength of the reasoning upon which the rule rests, that there must be a delivery as respects other parties, has been greatly impaired in this and other States, where the common law has been so modified as to allow the purchaser to prove, that the sale was not fraudulent, where possession did not accompany and follow it. What will amount to proof of delivery, has been the subject of much discussion; and it is rendered more difficult, and would probably bo found impracticable to stale any general rule applicable to all cases, especially in those States, where the law has been so modified as not to require an actual and permanent change of possession ; and where delivery is therefore rather nominal and symbolical than actual. But because the reasoning upon which the rule of law was established does not operate as formerly, and the rule itself is less convenient in practice, that does not authorize a court of law, contrary to a uniform course of decisions, to declare that the rule no longer exists. However one may regret, that a modification of one rule of law should be found to impair the reason upon which another rule was established, it may afford a lesson, that when one is dealing with the common law, stare decicis is judicial wisdom. And if experience has taught, that this modification has been productive of litigation, and afforded greater facilities for the commission of frauds, it would lead to a like conclusion. It will be perceived, that these remarks do not apply to eases arising under the statute of frauds, where an attempt is made to establish a title between the parties to the contract, by proof of delivery, without any memorandum in writing, or payment of the price.

The seller in this case, in making a disclosure of his affairs under oath, stated in the presence of his creditor for whose benefit the defendant’s deputy seized the property, that he had sold his half of the vessel to the plaintiff. This was as early as the third of May, and the property was not seized until the twenty-first of August following. The creditor having before known that the vessel had been sold to the plaintiff, cannot object to the title on account of the want of delivery. The case certainly exhibits strong indications of fraud, and for such a purpose the fact, that the seller continued to possess and control the property may be proved and considered ; but as the case is now presented the jury have found, *168that the sale was not fraudulent, and the creditor, thus affected with knowledge, is not entitled to defeat a bona fide sale for want of delivery. The cases referred to by the counsel for the defendant, to shew that the creditor is not precluded from taking advantage of that defect, only decide, that attaching creditors, who are not supposed to know whether any judgment will be obtained or title acquired, are not affected by a knowledge of each other’s proceedings ; and that one may attach, when he knows that his debtor is about making a sale, having no knowledge that the title has^ actually passed from him. It is also insisted, that the officer, not appearing to have been instructed or indemnified, is not to be affected by the knowledge of the creditor. The officer acts only for the benefit of the creditor, and if he should proceed without an indemnity and suffer by it, the loss must be imputed to his own neglect to take security. He is not more favorably situated, than the creditor, Wooderman v. Baldock, 8 Taunt. 676; Parsons v. Dickenson, 11 Pick. 352.

For these reasons it is not necessary to consider the testimony-tending to prove either an actual or constructive delivery.

Exceptions sustained and a new trial granted.