750. Removal of Property to Another State.-It is generally held that if a conditional sale is valid in the state where made, without recording, but the buyer, without the knowledge or consent of the seller, thereafter removes the property to another state, and there sells it to a bona fide purchaser, the seller may recover the property in that state, notwithstanding the conditional sale would have been invalid there for want of recording. On the other hand if the sale is made in one jurisdiction with the intention of both parties that the property is to be removed immediately to another jurisdiction, and there have its operation, the effect to be given to the sale in the latter state as against the levying creditors of the buyer or a bona fide purchaser from him is, according to the better view, to be governed by the law of the latter state, and though the contract, without recording, is valid in the state where it was made, it will not be given effect in the state to which the property is sent or removed, contrary to the policy of the law of such state which requires that all such contracts be recorded to render them valid as against levying creditors or bona fide purchasers from the buyer. In some cases, however, the courts of the state to which the subject matter of the sale was removed with the consent of the seller have upheld, on the ground of comity, the rights of the seller given by the laws of the state where the contract was made as against the creditors of the buyer, though the rights of such creditors would have been superior if the transaction was governed by its laws. Where a sale is made in one jurisdiction with reservation of title until the price is paid, and with the consent of the seller the property is removed to another jurisdiction, and there resold by the buyer without the consent of the original seller, the question as to the rights of the

4. Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 80 Pac. 151, 110 A. S. R. 1001 (applying the law of Utah). See also Adams v. Fellers, 88 S. C. 212, 70 S. E. 722, 35 L.R.A. (N.S.) 385.

Notes: 64 L.R.A. 833; 35 L.R.A. (N.S.) 388; Ann. Cas. 1916A 882.

Conn. 132, 46 Atl. 874, 84 A. S. R. 152; Knowles Loom Works v. Vacher, 57 N. J. L. 490, 31 Atl. 306, 33 L.R.A. 305; Schmaltz v. York Mfg. Co., 204 Pa. St. 1, 53 Atl. 552, 93 A. S. R. 782, 59 L.R.A. 907 (considering the effect to be given to a New York statThis is the same rule which is ute, to which state the property was applied in the case of chattel mort- removed). See also Boyer v. M. D. gages as to the effect of the removal Knowlton Co., 85 Ohio St. 104, 97 N. of the property to another state without the consent of the mortgagee. See CHATTEL MORTGAGES, vol. 5, p. 399 et seq.

5. Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 23 U. S. (L. ed.) 1003; Potter Mfg. Co. v. Arthur, 220 Fed. 843, Ann. Cas. 1916A 1268; Pulaski Mule Co. v. Haley, 187 Ala. 533, 65 So. 783, Ann. Cas. 1916A 877; Beggs v. Bartels, 73

E. 137, 38 L.R.A.(N.S.) 224.

Notes: 64 L.R.A. 833; 35 L.R.A. (N.S.) 387; Ann. Cas. 1916A 883. 6. Cleveland Mach. Works v. Lang, 67 N. H. 348, 31 Atl. 20, 68 A. S. R. 675; Barrett v. Kelley, 66 Vt. 515, 29 Atl. 809, 44 A. S. R. 862 (following an earlier case).

Notes: 64 L.R.A. 833; Ann. Cas. 1916A 882.

second purchaser is generally held to be governed by the law of the state where the resale is made; and where under the law of the latter state the purchaser acquires no title as against the original seller, his rights are not increased by the fact that under the law of the state where the original sale was made, the purchaser would have acquired a good title; and conversely it would seem that if under the law of the state where the resale was made the second purchaser would have acquired a good title, the law of this state will govern in a third state to which the property is removed by the second purchaser, even though under the law of the state where the conditional sale was made and of the third state into which the property was removed a purchaser from the buyer would not have acquired a good title if the resale had been made in either of these states. In some instances local statutes have expressly required that if property sold on conditional sale is thereafter brought within the state, the contract of sale must be there recorded to render it valid as against levying creditors of or purchasers from the buyer.

Validity and Operation Generally

751. Against Third Persons Generally.-It is a well settled general rule of law that in the sale of chattels property will pass or not, according to the intention of the parties, as expressed in the contract of sale; 10 and at common law the validity of contracts of sale under which the title is reserved or retained in the seller, until the performance of some condition precedent, usually the payment of the price, though the possession is delivered to the buyer, are universally upheld as between the parties and those claiming under the buyer as volunteers or with notice of the buyer's want of title; 11 and the fact

7. Marvin Safe Co. v. Norton, 48 N. J. L. 412, 7 Atl. 418, 57 Am. Rep. 566. See also Weinstein v. Freyer, 93 Ala. 257, 9 So. 285, 12 L.R.A. 700 (approving and following the above New Jersey case).

Notes: 64 L.R.A. 833; Ann. Cas. 1916A 880.

8. Note: Ann. Cas. 1916A 881. 9. Pulaski Mule Co. v. Haley, 187 Ala. 533, 65 So. 783, Ann. Cas. 1916A 877.

Note: L.R.A.1917D 944.

10. Cole v. Berry, 42 N. J. L. 308, 36 Am. Rep. 511. See also supra, par. 274 et seq.

11. Harkness v. Russell, 118 U. S. 663, 7 S. Ct. 51, 30 U. S. (L. ed.) 285; Bierce v. Hutchins, 205 U. S.

340, 27 S. Ct. 524, 51 U. S. (L. ed.) 828; Palmer v. Howard, 72 Cal. 293, 13 Pac. 858, 1 A. S. R. 60; Gerow v. Castello, 11 Colo. 560, 19 Pac. 505, 7 A. S. R. 260; Waterston v. Getchell, 5 Greenl. (Me.) 435, 17 Am. Dec. 251; Angier v. Taunton Paper Mfg. Co., 1 Gray (Mass.) 621, 61 Am. Dec. 436; Burbank v. Crooker, 7 Gray (Mass.) 158, 66 Am. Dec. 470; F. J. Dewes Brewing Co. v. Merritt, 82 Mich. 198, 46 N. W. 379, 9 L.R.A. 270; Cleveland Mach. Works v. Lang, 67 N. H. 348, 31 Atl. 20, 68 A. S. R. 675; Cole v. Berry, 42 N. J. L. 308, 36 Am. Rep. 511; Houston v. Dyche, Meigs (Tenn.) 76, 33 Am. Dec. 130.

Notes: 1 A. S. R. 63; 46 A. S. R. 298; 50 A. S. R. 37.

that the seller knew, at the time of the sale, that the buyer intended to make a gift of the property to a third person does not affect the seller's right to recover it from the donee.12 The federal courts consider the question as to the validity of conditional sales under which title is reserved in the seller until the price is paid, as against persons claiming under the buyer, as a question of local state law governing the transaction and follow the rule adopted by the highest court of the state. 13 Unless otherwise affected by statute a receiver appointed for the buyer will take the thing sold subject to the reservation of title in the seller; 14 and the same is true with regard to the buyer's assignee for the benefit of creditors. 15 Where, however, property, the subject of several conditional sales from different sellers, being of the same kind, is mingled together so as not to be capable of identification, and in that condition comes into the possession of a receiver of the buyer, and the sellers each bring suit for the specific property to which he is entitled, but the property belonging to each owner cannot be identified or the amount belonging to each ascertained, no judgment can be rendered in favor of any one of them, as against the others, for his specific property.16

752. Against Creditors and Bona Fide Purchasers; General Rule.In the absence of statutory provisions to the contrary, it is generally held that the reservation of title in the seller is valid against ievying creditors of the buyer,17 and even as against bona fide pur

12. Alabama Cable Co. v. Griffiths, Washington, etc., Co., 79 Wash. 534, 160 Ala. 315, 49 So. 577, 135 A. S. R. 140 Pac. 569, L.R.A.1917C 440; 100. Crawford v. Gordon, 88 Wash. 553, 153 Pac. 363, L.R.A.1916C 516.

13. Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 23 U. S. (L. ed.) 1003 (explained in Harkness v. Russell, 118 U. S. 663, 7 S. Ct. 51, 30 U. S. (L. ed.) 285); York Mfg. Co. v. Cassell, 201 U. S. 344, 26 S. Ct. 481, 50 U. S. (L. ed.) 782; Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 29 S. Ct. 614, 53 U. S. (L. ed.) 997.

Note: 40 L.R.A. (N.S.) 416.

As to the general duty of federal courts to follow the decisions of state courts, see UNITED STATES COURTS.

Note: Ann. Cas. 1916A 1258.

15. Praeger v. Emerson-Brantingham Implement Co., 122 Md. 303, 89 Atl. 501, Ann. Cas. 1916A 1255.

Note: Ann. Cas. 1916A 1261. 16. New Haven Wire Co. Cases, 57 Conn. 352, 18 Atl. 266, 5 L.R.A. 300.

17. Vermont Marble Co. v. Brow, 109 Cal. 236, 41 Pac. 1031, 50 A. S. R. 37; Barrett v. Pritchard, 2 Pick. (Mass.) 512, 13 Am. Dec. 449; Reed v. Upton, 10 Pick. (Mass.) 522, 20 Am. Dec. 545; Mount v. Harris, 1 14. Fosdick v. Schall, 99 U. S. 235, Smedes & M. (Miss.) 185, 40 Am. Dec. 25 U. S. (L. ed.) 339; Praeger v. Em- 89; Aultman v. Mallory, 5 Neb. 178, erson- -Brantingham Implement Co., 122 25 Am. Rep. 478; Cole v. Berry, 42 Md. 303, 89 Atl. 501, Ann. Cas. 1916A N. J. L. 308, 36 Am. Rep. 511; Max1255; Ardmore Nat. Bank v. Briggs, well v. Tufts, 8 N. Mex. 396, 45 Pac. etc., Co., 20 Okla. 427, 94 Pac. 533, 979, 33 L.R.A. 854; Parris v. Roberts, 129 A. S. R. 747, 16 Ann. Cas. 133, 34 N. C. 268, 55 Am. Dec. 415; Goodell 23 L.R.A. (N.S) 1074; Malmo v. v. Fairbrother, 12 R. I. 233, 34 Am.

chasers for value without notice of the buyer's want of title.18 This is in pursuance of the general rule that one in possession of a chattel as bailee or the like can transfer to a third person no greater right or interest than he himself possesses, 19 and in this connection the statement of an early English writer (1 Shep. Touch. 118) that "when a man hath a thing he may condition with it as he will" has frequently been quoted with approval:20 The seller may by his conduct and implied or express representations to one he knows is contemplating the purchase of the property from the buyer estop himself from asserung his title. A distinction is made between a sale under which

Rep. 631; Armington v. Houston, 38
Vt. 448, 91 Am. Dec. 366.

Notes: 89 Am. Dec. 127; 25 L.R.A. (N.S.) 787.

1915D 1141; Freed Furniture, etc., Co. v. Sorensen, 28 Utah 419, 79 Pac. 564, 107 A. S. R. 731, 3 Ann. Cas. 634; Studebaker Bros. Co. v. Mau, 13 Wyo. 358, 80 Pac. 151, 110 A. S. R. 1001 (decided under the law of Utah).

Notes: 13 Am. Dec. 452; 66 Am. Dec. 369, 473; 74 Am. Dec. 312; 92 Am. Dec. 317; 37 Am. Rep.

550, 32 L.R.A. 260); Heinbockle v. Zubaum, 5 Mont. 344, 5 Pac. 897, 51 Am. Rep. 59; Cole v. Berry, 42 N. J. L. 308, 36 Am. Rep. 511; Marvin Safe 18. Conrad v. New York Atlantic Co. v. Norton, 48 N. J. L. 410, 7 Atl. Ins. Co., 1 Pet. 386, 7 U. S. (L. ed.) 418, 57 Am. Rep. 566; Singer Mfg. 189; Harkness v. Russell, 118 U. S. Co. v. Graham, 8 Ore. 17, 34 Am. 663, 7 S. Ct. 51, 30 U. S. (L. ed.) 285; Rep. 572; Woods v. Nichols, 21 R. I. Sumner v. Woods, 67 Ala. 139; 42 537, 45 Atl. 548, 48 L.R.A. 773; Shaw Am. Rep. 104 (overruling earlier v. Webb, 131 Tenn. 173, 174 S. W. cases); Weinstein v. Freyer, 93 Ala. 273, Ann. Cas. 1916A 626, L.R.A. 257, 9 So. 285, 12 L.R.A. 700; Triplett v. Mansur, etc., Implement Co., 68 Ark. 230, 57 S. W. 261, 82 A. S. R. 284; Palmer v. Howard, 72 Cal. 293, 13 Pac. 858, 1 A. S. R. 60; Lewis v. McCabe, 49 Conn. 141, 44 Am. Rep. 217; American Process Co. v. Florida White Press Brick Co., 56 Fla. 116, 47 So. 942, 16 Ann. Cas. 1054; Dunbar v. Rawles, 28 Ind. 225, 92 Am. 664; 42 Am. Rep. 105; 57 Am. Dec. 311 and note; Winchester, etc., Mfg. Co. v. Carman, 109 Ind. 31, 9 N. E. 707, 58 Am. Rep. 382; Bailey v. Harris, 8 Ia. 331, 74 Am. Dec. 312; Emerson v. Fisk, 6 Greenl. (Me.) 200, 19 Am. Dec. 206; Lane v. Borland, 14 Me. 77, 31 Am. Dec. 33; Crocker v. Gullifer, 44 Me. 491, 69 Am. Dec. 118; 19. Sumner v. Woods, 67 Ala. 139, Stevens v. Ellis, 48 Me. 501, 77 Am. 42 Am. Rep. 104; Dunbar v. Rawles, Dec. 240; Sargent v. Metcalf, 5 Gray 28 Ind. 225, 92 Am. Dec. 311. As to (Mass.) 306, 66 Am. Dec. 368; Bur- the general rights of bona fide purbank v. Crooker, 7 Gray (Mass.) 158, chasers of chattels, as distinguished 66 Am. Dec. 470 and note; Zuchtmann from commercial paper, see. supra, v. Roberts, 109 Mass. 53, 12 Am. Rep. par. 662 et seq. 663; Pratt v. Burhans, 84 Mich. 487, 20. Lewis v. McCabe, 49 Conn. 141, 47 N. W. 1064, 22 A. S. R. 703; 44 Am. Rep. 217; Cole v. Berry, 42 Watts v. Ainsworth, 89 Miss. 40, 42 N. J. L. 308, 36 Am. Rep. 511. So. 672, 119 A. S. R. 700 (distinguish- Notes: 25 L.R.A. (N.S.) 782. ing Columbus Buggy Co. v. Turley, 1. Jenks v. Colwell, 66 Mich. 420, 73 Miss. 529, 19 So. 232, 55 A. S. R. 33 N. W. 528, 11 A. S. R. 502.

Rep. 572 et seq.; 1 A. S. R. 63; 3 A. S. R. 198; 22 A. S. R. 703; 35 A. S. R. 497; 46 A. S. R. 298; 134 A. S. R. 278; 10 L.R.A. 233 et seq.; 12 L.R.A. 447; 12 L.R.A. 703; 25 L.R.A.(N.S.) 782 et seq.; Ann. Cas. 1913C 330; Ann. Cas. 1916A 1273 et seq.

the title is expressly retained in the seller, though possession is delivered to the buyer, and one in which the delivery is made conditional and the incidental retention of the title in the seller until performance of the condition attached to the delivery and essential as between the parties to make the delivery absolute and capable itself of transferring the title, and it is held that while in the former case a bona fide purchaser from the buyer will acquire no title as against the seller, it is otherwise in the latter case.

753. Particular Circumstances Affecting General Rule.-The fact that the seller gives to the buyer a bill of sale absolute in form, omitting any statement of the reservation of title in the seller, has been held insufficient in the absence of fraud to estop him from reclaiming the chattel as against one who repurchases from the buyer on the faith of the bill of sale. The fact that the commodity sold is of such a character or the circumstances surrounding the sale are such that consumption in its use or the right of the buyer to resell without first paying the price may be implied or is expressly given is held insufficient to subject it to levy, as against the seller, at the suit of creditors. of the buyer or to entitle the buyer's assignee for the benefit of creditors or his receiver or the like to claim the same as against the seller. And it has been held that a sale of household provisions, on condition that they shall remain the property of the seller until paid for and with the understanding that they may be used and consumed by the buyer before payment is made, is valid as against attaching creditors of the buyer, as this is merely a license to the buyer to use the property of the seller. It has also been held that the retention by a wholesaler of dry goods of title to the goods and their proceeds in a sales contract under which the goods pass to a retailer for resale is effective against a chattel mortgage executed by the retailer to a trustee for creditors."

2. Comer v. Cunningham, 77 N. Y. 391, 33 Am. Rep. 626. As to the effect of a conditional delivery to pass the title, see supra, par. 302.

3. Zuchtmann v. Roberts, 109 Mass. 53, 12 Am. Rep. 663. As to the general rights of a purchaser of a chattel from one clothed with the indicia of ownership, see supra, par. 665.

4. Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 29 S. Ct. 614, 53 U. S. (L. ed.) 997; Ludvigh v. American Woolen Co., 231 U. S. 522, 34 S. Ct. 161, 58 U. S. (L. ed.) 345; Triplett v. Mansur, etc., Imp. Co., 68 Ark. 230, 57 S. W. 261. 82 A. S. R. 284; Lewis v. McCabe, 49 Conn. 141,

44 Am. Rep. 217; New Haven Wire Co. Cases, 57 Conn. 352, 18 Atl. 266, 5 L.R.A. 300; Andre v. Murray, 179 Ind. 576, 101 N. E. 81, Ann. Cas. 1916A 87, L.R.A.1917B 667; F. J. Dewes Brewery Co. v. Merritt, 82 Mich. 198, 46 N. W. 379, 9 L.R.A. 270; Prentiss Tool, etc., Co. v. Schirmer, 136 N. Y. 305, 32 N. E. 849, 32 A. S. R. 737. See also Vermont Marble Co. v. Brow, 109 Cal. 236, 41 Pac. 1031, 50 A. S. R. 37.

Notes: L.R.A.1917B 661; Ann. Cas. 1916A 93.

5. Armington v. Houston, 38 Vi. 448, 91 Am. Dec. 366.

6. Mishawaka Woolen Mfg Co. v.