The following opinion was delivered:
By Mr. Justice Marcy.
The questions presented by this case for our determination are, 1. Was there*a sale of the 18 packages of merchandize by the appellants to Marie 1 2. Had the appellants a lien on the property when they demanded it at Norfolk or New-York %
The validity of the sale is questioned upon two grounds: 1. The contract of sale was never complete, it is said, because the purchaser Marie did not comply with the condition upon which its validity depended. The position that where any thing remains to be done to complete a contract of sale, the title of the property does not pass to the purchaser, has had the sanction of too many decisions, and is too generally acquiesced in, to require the citation of authorities to sustain it. Indeed it was not questioned on the argument. By the terms of the sale, promissory notes were to be given by Marie for the goods, payable at six, seven, eight, nine, *81and ten months. These notes have never been given, and if the giving of them has not been waived by the appellants or their agent, the title to the goods has not vested in the purchaser. The goods were delivered without requiring the notes. Marie says the notes have never been demanded, and he has been willing at all times to give them, but believes the appellants since his failure are unwilling to receive them. It is contended that there has been a waiver of this condition of the contract. Where the delivery is absolute, it is a waiver of the condition of payment or giving security; and we search this case in vain for any facts that can warrant an inference that the delivery of the goods was not fair and unconditional. If the appellants did not intend that Marie should become vested with the absolute property in the goods, “ they were bound,” as Ch. J. Parsons said in the case of Hussey v. Thornton, 4 Mass. 405" court="Mass." date_filed="1808-05-15" href="https://app.midpage.ai/document/hussey-v-thornton-6403237?utm_source=webapp" opinion_id="6403237">4 Mass. R. 405, “to recollect the conditions they had themselves made, and not to deliver the packages till the conditions were complied with.” It has been held, where goods were sold to be paid for in cash down, that the delivery, without demanding the money, vested the title of them in the purchaser. Haswell v. Hunt, assignee, &c. cited in 5 T. R. 231. The delivery of the thing sold, made unconditionally and not procured by fraud, vests the absolute property in the purchaser. 6 Cowen, 110, and cases oiled, and note.
The second ground of objection to the validity of the sale is mistake or error. The alleged mistake was not in the article sold, or in the identity of the person purchasing, but in the ability of the purchaser to pay. The appellants sold to one whom they believed to be solvent, but who was not so in fact. The case shews that there was in this respect a mutual misapprehension. No objection can therefore be raised to the contract on the ground of fraud. Marie did believe, and had good reason to believe, that he was solvent when he entered into the contract. To invalidate contracts upon the ground that one of the parties was mistaken in the ability of the other to execute, would be establishing a doctrine unknown, I think, to any code, and of the most dangerous consequences. If the circumstances of the purchaser may he *82" enquired into whenever the seller wishes to disaffirm a con¡jact, the commercial world, by the exercise of this right.of enquiry, would be thrown into the greatest confusion. I - presume that the appellants do not contend for an application of this doctrine beyond a case like their own—a case where the insolvency of the purchaser is notorious and acknowledged ; but if the principle of the doctrine is that the seller can disaffirm the sale because the purchaser has been dealt with as a solvent person, when he was in fact insolvent, the mistake, whenever it existed, would authorize the original owner to reclaim the property the moment of a default in the payment and perhaps anticipation of it; and he might allege this insolvency and default to exist in any case, and seek to enter upon an inquiry into the circumstances of the purchaser while he was in active business and his credit unimpaired. I cannot consent to yield the least countenance to such a doctriné.
The remaining "question to be settled relates to the lien which the appellants claim to have had on the property. The assignment of it to Varet was not in the usual course of trade; it was voluntary on the part of Marie and for the purpose of indemnifying Varet against antecedent responsibilities. If there would have been a lien without the assignment, the assignment did not operate to discharge it. The rule'of law in relation to real estate is, that the. vendor has without any express agreement for that purpose, a lien on the premises conveyed, even after possession thereof is delivered to the purchaser, for the purchase money, provided he has not taken a distinct and independent security therefor, and the land has not passed by a bona fide sale to a third person. The chancellor held in this case that such a rule does not exist in relation to personal properly. Whether it does or not we are now to determine. By the Roman law the vendor could in such a case as this resort to the property ; and so, I think, he may by the civil code of France, notwithstanding article 1583, which changes the civil law and conforms to the common law, so far as to vest the title in the purchaser without delivery or payment of the price. Code Napoleon, art. 1654, 1183, 4. Dig. Lib. 18, til. 1, l. 19. All contracts of sale, although positive in their terms, *83according to these laws, have, it is said, this implied condition: provided the price is paid.” 7 Cours de Code Civil, 152, par Delvincourt. It was admitted on the argument by the counsel for the appellants, that the decisions of the English courts furnished but little or no countenance to (he doctrine they advanced; but this was ascribed toa provision in the bankrupt law of that country, which declares that the goods found in the possession of the bankrupt, subject to his order or disposition as owner, shall pass to his assignee, though they be in fact the property of others. This statute would cut off this lien in cases of bankruptcy where it would most frequently arise; but it would often arise where there was no bankruptcy. If it is a rule of the common law, it must be shown to have existed at some period. This is not a matter confined exclusively to commercial dealings and to be settled by commercial usage. In France it is not a provision of the commercial code ¿lone; it is founded in the civil code, and has a general application to all sales. Are we then to recognize the rule as a part of the common law 1 This, I think, we cannot do unless we have some proof that it is so. We are asked to infer its existence in relation to personal property, because it exists in the case of real property; but even in relation to real property it does not exist as a rule of the ancient common law : it is a doctrine of equity, and not of law, and was transplanted into equity from the civil law. But it may be said that if equity can adopt the rule of the civil law as applicable to real estate, it may adopt it in extenso. If we find it as it is claimed in this case in our system of equity, without inquiring how or when it came there, whether by a bold act of adoption or by insinuation, whether it is to be reverenced for its age or admired as a modern improvement, we ought to give the benefit of it to the appellants. We are referred to no case on the argument, and I think the search would be in vain to find one, wherein it has been decided in a court of law or equity in this country or in England, that after a sale of personal property and a fair and absolute delivery to the purchaser personally, the vendor can reclaim the property because the consideration has not been paid.
*84There is an intimation of Lord Harwicke, in Snee v. Prescott, 1 Atk. 245, which conveys his opinion of the reasonableness of the doctrine, that the seller of goods should have a right, in cases of insolvency, to resort to the goods sold, even after delivery, to secure himself for the purchase money; but the case did not present a state of facts on which such a question could arise for bis determination; it was a clear case of stoppage in transitu. Some expressions of Lord Loughborough, in the case of Mason v. Lickbarrow, 1 H. Black. 366, would seem to place the right of stoppage in transitu upon the ground that the sale is so far incomplete, until the purchase money is paid, as to prevent the title from vesting absolutely in the purchaser. “The admitted right of the consignor, he says, to slop the goods in transitu, as against the consignee, can only rest upon-his original title as owner not divested, or upon a legal title to hold the possession of the goods till the price is paid as a pledge for the price.” Putting the right upon the latter alternative, no inference can be drawn from it to countenance the doctrine contended for in this case.- Although the cases in relation to the stoppage of property in transitu were referred to on the argument, and the doctrine discussed somewhat at large, an examination of these cases, or a particular consideration of that doctiine, does not seem to me to be called for to enable us to come to a right conclusion in this case. If there is any principle established in law, it is that the right to stop in transitu exists only during the transit of the property; when that is complete, and the property has come fairly and fully to the possession of the purchaser, the right is at an end.
It was urged on the argument, that the doctrine contended for on the part of the appellants is so salutary, if we did not find it sanctioned by any other court, we ought to take this occasion to legitimatize it. In reply to this suggestion, I will borrow the language of Mr. Justice Story, in the case of Conyers v. Ennis, 2 Mason, 236, in which questions, in all respects similar in principle to those now under consideration, w7ere decided as I propose to decide these: “ I do not sit here to revise the general judgment of the common law, or *85to establish new doctrines,, merely because they seem to be more convenient or equitable. My duty is to administer the law as I find it, and I have not the rashness to attempt more than this humble duty.” I am of opinion that the decree of the chancellor ought to be affirmed.
This being the unanimous opinion of the court, the decree of the chancellor" was thereupon affirmed with costs.