Miller v. Le Piebre
136 Mass. 20
Mass.
1883
Check Treatment
Devens, J.

The plaintiff had made an instrument in writing stating that he delivered to John Joubar one cow formerly owned by him, and that he released all claim upon her. He afterwards went to the defendant, before bringing this writ of replevin, and demanded the cow-, stating that he wanted her to deliver to Joubar. Upon these facts, the court ruled that he had so far parted with his property that he could not maintain this action.

The transaction with Joubar cannot be treated otherwise than as an attempted gift. Joubar had purchased a ticket in a raffle from the plaintiff, and had, as the plaintiff thought, won the cow in the raffle, and he therefore desired to put him in possession of her. The plaintiff and Joubar did not stand in the relation of vendor and vendee, and the purchase of a ticket in the plaintiff’s *22raffle, which was a gaming transaction, did not afford any consideration for a sale or a contract of sale. The plaintiff was not under a legal obligation to transfer the cow to Joubar, although, if the transaction had been executed by actual delivery, it would not have been disturbed in favor of a party in pari delicto. Patterson v. Clark, 126 Mass. 531.

Joubar’s only right, in the aspect most favorable to the existence of a'legal title in him, was that of a donee; and, unless the gift to him was fully perfected, the plaintiff still had a title when he demanded the cow and brought the action. Without delivery of the subject of a gift, the title therein does not pass. If the attempted transfer by delivery of possession does not take effect, it is then not properly a gift. 2 Bl. Com. 441. The delivery must be actual, so far as the subject is capable of delivery, and made to the donee, or some other person for him, with his consent and for his use. This is the rule in equity, as well as at law. Grover v. Grover, 24 Pick. 261. Sessions v. Moseley, 4 Cush. 87. Carpenter v. Dodge, 20 Vt. 595. Undoubtedly the delivery may be constructive or symbolical, if the goods are so situated that the possession of, and dominion over, them may thus be completely parted with, and transferred, by the donor. But until such delivery is made, the gift is revocable and incomplete, and the property is still in him who originally owned it. In the case at bar, when the plaintiff handed the paper to Joubar stating that he delivered to him the cow, he had himself no possession of the property, nor could he then exercise any dominion over it. It was in the actual possession of one who held it, not as his servant or his bailee, but against him and in denial of his right. There can be no delivery of possession by one who himself has none. The transaction with Joubar did not operate, therefore, to pass the property of the plaintiff, and thus to prevent him from maintaining this action.

Exceptions sustained.