17 Me. 162 | Me. | 1840
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.
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,
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.