of the buyer.12 If, in case of a sale on credit and shipment by carrier to the buyer, the buyer should refuse to accept the goods from the carrier, it would seem that the title would remain in the seller on the ground that there had been no acceptance by the buyer sufficient to consummate the transfer of the title to the buyer, the delivery to the carrier not only reserving to the seller a right of stoppage in transitu but also leaving a locus pœnitentiæ to the debtor to decline to be guilty of accepting the property from the carrier, with knowledge of his inability to pay for it.13 Thus where a purchase is made by an insolvent without disclosing his financial condition, though this is not such a fraud as will entitle the buyer to rescind the sale,1 still where the buyer, while the goods were in transit, made an assignment for the benefit of his creditors and at the time directed his assignee to ship the goods back to the seller, it has been held that the seller was entitled to reclaim the goods from the assignee.15 The nonacceptance by the buyer seems to be the basis of the English decisions in cases of this character.16 It has been held that a buyer after an alleged purchase of goods in payment of a pre-existing debt. is estopped by the levy of an execution in his favor upon the same goods, as the property of the seller, from claiming the goods in any other way than by virtue of such levy, and that this is so, although the evidence shows that he did not intend by such levy to abandon his alleged purchase, and was advised by counsel that it would not affect his title to the goods, the property having been also attached by other creditors of the seller.17 Where a barter has become complete, for one of the parties afterwards, without consent of the other, to resume possession of his former property is simply a tort, and does not reinvest him with title.18 The construction and effect of contracts "on sale or return" and the performance by the buyer of the conditions attached to his right to return are discussed later. 19 As between Buyer and Third Persons 312. As against Subsequent Purchasers Generally.-While there is no doubt that property in chattels may pass by a bargain and sale for a sufficient consideration, without delivery, as between the parties to the sale, still, as against every one but the seller, there must be a delivery of the possession.20 And as a general rule when the same chattel is sold to two different persons, by transfers equally valid as 12. Sturtevant v. Orser, 24 N. Y. 538, 82 Am. Dec. 321. Note: 82 Am. Dec. 326. 16. See Sturtevant v. Orser, 24 N. Y. 538, 82 Am. Dec. 321. 17. Field v. Langsdorf, 43 Mo. 32, 13. Sturtevant v. Orser, 24 N. Y. 97 Am. Dec. 367. 538, 82 Am. Dec. 321. Note: 82 Am. Dec. 326. 14. See infra, par. 591. 15. Belding v. Frankland, 8 Lea (Tenn.) 67, 41 Am. Rep. 630. R. C. L. Vol. XXIV.-4. 49 18. Cook v. Pinkerton, 81 Ga. 89, 7 S. E. 171, 12 A. S. R. 297. 19. See infra, par. 720 et seq. 20. Babb v. Clemson, 10 Serg. & R. (Pa.) 419, 13 Am. Dec. 684; Fletcher between the seller and the buyer, he who first lawfully acquires the possession will hold it against the other. If the second purchaser first lawfully acquires the possession he will hold as against the first, and the fact that the second buyer purchased in consideration of an antecedent debt does not prevent him from acquiring title as against the prior purchaser. On the other hand if the first buyer lawfully acquires the possession before the second, the first sale will thereby be perfected as against the claim of the second purchaser. This general rule as to the effect of the seller's retention of possession is carried into the English Sale of Goods Act, which provides that "where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without. notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.' In some cases, however, the view is taken that as against a second purchaser, the retention of possession by the seller is at most prima facie evidence of fraud, and if the sale was in fact bona fide, it will be good as against the second purchaser, though he had no notice of the prior sale. 15 6 313. As against Creditors of Seller Generally.-It is generally held that a sale without delivery of the possession is ineffectual both at common law and under the statutes directed against fraudulent transfers to transfer the title as against attaching and execution creditors of the seller. On the other hand in a number of jurisdictions the v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686. 1. Jewett v. Lincoln, 14 Me. 116, 31 Am. Dec. 36; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245; Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119; Brown v. Pierce, 97 Mass. 46, 93 Am. Dec. 57; Ricker v. Cross, 5 N. H. 570, 22 Am. Dec. 480; Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354: Fletcher v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686. 2. Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119; Winslow v. Leonard, 24 Pa. St. 14, 62 Am. Dec. 354; Davis v. Bigler, 62 Pa. St. 242, 1 Am. Rep. 393; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 A. S. R. 868; Fletcher v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686. See also Jennings v. Flanagan, 5 Dana (Ky.) 217, 30 Am. Dec. 683. Notes: 9 Am. Dec. 123; 60 A. S. R. 237. 3. Fletcher v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686. 4. Jewett v. Lincoln, 14 Me. 116, 31 Am. Dec. 36. See also Lamson v. Patch, 5 Allen (Mass.) 586, 81 Am. Dec. 765. 5. A similar provision is contained in the New York Sale of Goods Act. 6. Shaddon V. Knott, 2 Swan (Tenn.) 358, 58 Am. Dec. 63. 7. Hamilton v. Russell, 1 Cranch 309, 2 U. S. (L. ed.) 118; Herr v. Denver Milling, etc., Co., 13 Colo. 406, 22 Pac. 770, 6 L.R.A. 641; Crouch v. Carrier, 16 Conn. 505, 41 Am. Dec. 156; Corgan v. Frew, 39 Ill. 31, 89 Am. Dec. 286; Cobb v. Haskell, 14 Me. 303, 31 Am. Dec. 56; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245; McKee v. Garcelon, 60 Me. 165, 11 view is taken that the retention of possession by the seller is only prima facie evidence of fraud which may be rebutted, and if the bona fides of the transaction is shown, the sale will be sustained as against subsequent creditors of the seller, and it has been held that though a sale of personal property is presumptively fraudulent for want of change of possession, yet the evidence rebutting such presumption may be so clear and free from dispute as to justify the court in refusing to submit the question of fraud to the jury. Again, the view has been taken, it seems, that if there has been no delivery actual or constructive, though the sale as between the parties is sufficient to transfer the title, it cannot be sustained as against levying creditors of the seller.10 Thus it has been held that the mere delivery of a bill of sale to the buyer will not perfect the sale as against the levying creditors of the seller, though the sale was bona fide and as between the parties passed the title in pursuance of their intention,11 and where the property was in the hands of a third person such as a warehouseman, notice to the bailee of the sale has been held necessary.12 On the other hand if there was an actual or constructive delivery though the seller continued in the actual possession, it has been held that if the sale was in fact bona fide such retention of possession will not invalidate it.18 An exception to the general rule that the retention of possession by a seller renders the sale fraudulent or prima facie fraudulent as to creditors of the seller is made in the case of sales under judicial process.14 This is because the sale is not the act of the person retaining, but of the law; and because a judicial sale, being conducted by the sworn officer of the court, shall be deemed fair till Am. Rep. 200; Baldwin v. Thayer, 71 N. H. 257, 52 Atl. 852, 93 A. S. R. 510 (announcing the law of Vermont by which the case was governed); Martin v. Mathiot, 14 Serg. & R. (Pa.) 214, 16 Am. Dec. 491; Clow v. Woods, 5 Serg. & R. (Pa.) 275, 9 Am. Dec. 346; Babb v. Clemson, 10 Serg. & R. (Pa.) 419, 13 Am. Dec. 684; Eagle v. Eichelberger, 6 Watts (Pa.) 29, 31 Am. Dec. 449; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 A. S. R. 868; Hudnal v. Wilder, 4 McCord (S. C.) 294, 17 Am. Dec. 744. Note: 97 Am. Dec. 340. 8. Fleming v. Townsend, 6 Ga. 103, 50 Am. Dec. 318; Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318; Lawrence v. Burnham, 4 Nev. 361, 97 Am. Dec. 540; Bissell v. Hopkins, 3 Cow. (N. Y.) 166, 15 Am. Dec. 259; Shaddon v. Knott, 2 Swan (Tenn.) 358, 58 Am. Dec. 63. See FRAUDULENT CONVEYANCES, vol. 12, p. 551 et seq., as to the general effect of retention of possession by the seller. 9. Prentiss Tool, etc., Co. v. Schirmer, 136 N. Y. 305, 32 N. E. 849, 32 A. S. R. 737. 10. Hallgarten V. Oldham, 135 Mass. 1, 46 Am. Rep. 433. 11. Dempsey v. Gardner, 127 Mass. 381, 34 Am. Rep. 389. v. 12. Hallgarten Oldham, 135 Mass. 1, 46 Am. Rep. 433. 13. Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340; Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360. 14. Myers v. Harvey, 2 Pen. & W. (Pa.) 478, 23 Am. Dec. 60; Dick v. Cooper, 24 Pa. St. 217, 64 Am. Dec. 652; Boardman v. Keeler, 1 Aikens (Vt.) 158, 15 Am. Dec. 670 and note; Caswell v. Jones, 65 Vt. 457, 26 Ati. 529, 36 A. S. R. 879, 20 L.R.A. 503. it is proved to be otherwise.15 In Louisiana delivery is necessary to transfer the title to chattels sold, without which the property remains subject to levy by creditors of the seller.16 The law of the state in which the chattel sold is situated controls in determining whether a sale thereof, though made in another state, is valid as against creditors of the seller who levy on the chattel.17 314. Effect of Notice of Sale or Subsequent Taking of Possession.— The reason why a sale, even though the price is paid, is not good as respects third persons without a delivery is that the law regards the buyer 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; hence it would seem and it has been so held if the third party 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.18 According to the view taken in other cases, however, the want of immediate delivery, accompanied by an actual and continued change of possession, in the sale of goods and chattels, is conclusive evidence of fraud in the seller as against attaching creditors, whether the latter knew of the sale or not.19 And it has been held that notice to the officer holding the writ, before levy, is not such a notice to the levying creditor as to perfect the sale as against such creditor.20 In most jurisdictions the view is taken that if the buyer obtains possession by consent of the seller before any attachment or levy by creditors of the seller, the transfer becomes complete and valid as against them, though until such possession was taken it was invalid by reason of the seller's retention of possession. In some jurisdictions, however, the subsequent acquisition of possession by the buyer before levy by the seller's creditor is held not to validate the sale. Where the same chattels are sold to two persons if the first 15. Meyers v. Harvey, 2 Pen. & W. (Pa.) 478, 23 Am. Dec. 60. 16. Ramsey v. Stevenson, 5 Mart. O. S. (La.) 23, 12 Am. Dec. 468; Peabody v. Carrol, 9 Mart. O. S. (La.) 295. 13 Am. Dec. 305. 17. Thuret v. Jenkins, 7 Martin O. S. (La.) 318, 12 Am. Dec. 508; Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Dec. 433; Baldwin v. Thayer, 71 N. H. 257, 52 Atl. 852, 93 A. S. R. 510; Born v. Shaw, 29 Pa. St. 288, 72 Am. Dec. 633. Note: 64 L.R.A. 829. 18. Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245. 19. Lawrence v. Burnham, 4 Neb. 361, 97 Am. Dec. 540; Baldwin v. 20. McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200. 1. Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340; Ingalls v. Herrick, 108 Mass. 351, 11 Am. Rep. 360; Western Min. Supply Co. v. Quinn, 40 Mont. 156, 105 Pac. 732, 135 A. S. R. 612, 20 Ann. Cas. 173, 8 L.R.A. (N.S.) 214. See also Bartlett v. Blake, 37 Me. 124, 58 Am. Dec. 775. Notes: 65 Am. Dec. 496; 28 L.R.A (N.S.) 214; 20 Ann. Cas. 175. 2. Chenery v. Palmer, 6 Cal. 119, purchaser lawfully acquires the possession before the second, the first sale will be thereby perfected as against the second purchaser.3 315. Sale of Property Having Potential Existence Only.-The doctrine of retention of possession by the seller as invalidating the sale as against his creditors does not apply to a sale of property which has a potential but not an actual existence at the time of the sale, because the seller cannot be said to retain possession of that which he can never be said to have had an actual possession as owner. Thus where brood mares were sold to be kept on the seller's premises, all their colts by the seller's stallion to belong to the buyer, it was held that though the keeping of the mares in the seller's barn might be such a retention of possession by him as to invalidate their sale as against his creditors, the keeping of the colts thereafter foaled on the premises would not invalidate their sale. So a sale by a lessee to his landlord of the crops to be raised on the leased premises is valid as against the lessee's attaching creditors, without any necessity for a delivery of possession to the buyer even after the crops are harvested." 316. Delivery to Third Person.-A delivery of the subject matter of a sale to a third person with the consent of the buyer to hold for him is a sufficient delivery and change of possession to validate the sale as against a subsequent purchaser or levying creditor of the seller, and ordinarily a delivery to a carrier for shipment to the buyer will not only operate to transfer the title as between the parties, but is also sufficient to give validity to the sale as against levying creditors of the seller. So where wood was purchased to be delivered in the yards of a railroad company, its delivery there was held sufficient to render the sale effective as against levying creditors of the seller.10 317. Constructive Delivery Generally.-A constructive delivery may be sufficient to pass the title as against subsequent purchasers from and levying creditors of the seller, provided the buyer is not guilty of laches in taking actual possession when the opportunity arises.11 As has been well said, it is easy enough to understand the 65 Am. Dec. 493 and note; Ruggles v. Cannedy, 127 Cal. 300, 53 Pac. 911, 59 Pac. 827, 46 L.R.A. 371. See also Western Min. Supply Co. v. Quinn, 40 Mont. 156, 105 Pac. 732, 135 A. S. R. 612, 20 Ann. Cas. 173, 28 L.R.A. (N.S.) 214 (disapproving cases from other jurisdictions). Notes: 28 L.R.A. (N.S.) 215; 20 Ann. Cas. 176. 3. See supra, par. 312. 4. Hull v. Hull, 48 Conn. 250, 40 Am. Rep. 165. And see supra, par. 61. 5. Hull v. Hull, 48 Conn. 250, 40 Am. Rep. 165. 6. Hull v. Hull, 48 Conn. 250, 40 Am. Rep. 165. 7. Bonner v. Marsh, 10 Smedes & M. (Miss.) 376, 48 Am. Dec. 754; Holbrook v. Wight, 24 Wend. (N. Y.) 169, 35 Am. Dec. 607. 8. See supra, par. 304. 9. Grove v. Brien, 8 How. 429, 12 U. S. (L. ed.) 1142; Halliday v. Hamilton, 11 Wall. 560, 20 U. S. (L. ed.) 214; Hall v. Richardson, 16 Md. 397, 77 Am. Dec. 303. Note: 22 L.R.A. 425. 10. National Bank v. Dayton, 102 U. S. 59. 26 U. S. (L. ed.) 77. 11. Gibson v. Stevens, 8 How. 384, |