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meaning of the words "immediate delivery" as used when applied to the sale, over the counter, of small articles of merchandise; but when one attempts to apply the same meaning to a sale of a kiln of hot bricks, or hay in the swath, stack, or mow, or a large quantity of ore in bins, he appreciates fully the difficulty in the way of establishing a hard and fast rule applicable to all cases. It is not now an open question that there may be such a constructive delivery as will fully satisfy the requirements of the law; for the law does not demand impossibilities.12 It has been said, however, that the doctrine of constructive delivery should not be extended, as the want of an open and visible change of possession is likely to occasion false credit and frauds on the creditors of the seller.18 And ordinarily a constructive delivery cannot take the place of an actual delivery and change of possession when the latter can be reasonably made 14 If the property is at the time of the sale in the possession of the buyer no further act of delivery is necessary to render the sale valid as against the seller's creditors.15

318. General Application of Rule as to Constructive Delivery.— In case of a sale of growing crops a constructive delivery as by identifying and marking off the field or part of the field, the crop on which is sold, will be effectual to pass the title as against subsequent levying creditors of the seller.16 So in case of the sale of a vessel at sea, if the buyer is not guilty of any laches in taking possession on the arrival of the vessel, the sale will be upheld as against levying creditors of

Note: 97 Am. Dec. 347.

12. Western Min. Supply Co. v. Quinn, 40 Mont. 156, 105 Pac. 732, 135 A. S. R. 612, 20 Ann. Cas. 13, 28 L.R.A. (N.S.) 214.

13. Cobb v. Haskell, 14 Me. 303, 31 Am. Dec. 56.

14. Note: 97 Am. Dec. 345.

15. Brown v. Pierce, 97 Mass. 46, 93 Am. Dec. 57.

12 U. S. (L. ed.) 1123; Taney v. 868; Kinney v. Rock Springs First Penn. Nat. Bank, 232 U. S. 174, 34 S. Nat. Bank, 10 Wyo. 115, 67 Pac. 471, Ct. 288, 58 U. S. (L. ed.) 558; Cocke 98 A. S. R. 972. v. Chapman, 7 Ark. 197, 44 Am. Dec. 536; Cummins v. Griggs, 2 Duv. (Ky.) 87, 87 Am. Dec. 482; Southern Bank v. Wood, 14 La. Ann. 554, 74 Am. Dec. 446; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245; Bethel Steam Mill Co. v. Brown, 57 Me. 9, 99 Am. Dec. 752; McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200; Legg v. Willard, 17 Pick. (Mass.) 140, 28 Am. Dec. 282; 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: Tognini v. Kyle, 17 Nev. 209, 30 Pac. 829, 45 Am. Rep. 442; Ricker v. Cross, 5 N. H. 570, 22 Am. Dec. 480; Corning v. Records, 69 N. H. 390, 46 Atl. 462, 76 A. S. R. 178; Renninger v. Spatz, 128 Pa. St. 524, 18 Atl. 405, 15 A. S. R. 692; Stephens v. Gifford, 137 Pa. St. 219, 20 Atl. 542, 21 A. S. R.

16. Graff v. Fitch, 58 Ill. 373, 11 Am. Rep. 85; Cummings v. Griggs, 2 Duv. (Ky.) 87, 87 Am. Dec. 482. In Lamson v. Patch, 5 Allen (Mass.) 586, 81 Am. Dec. 765, it was held that there was not a constructive delivery of hay as a chattel, sufficient to pass title to it, where the only act done by the seller was to pluck a handful of the half grown grass, and deliver it to the buyer in the field.

the seller; 17 and a sale of a ship in a distant port has been held to stand on the same footing as the sale of a ship at sea.18 The same has been held true with regard to the sale of a cargo at sea.19 But it has been held that when a ship at sea is transferred the buyer takes her subject to all incumbrances on her by the persons in charge before notice of the transfer. This doctrine seems to be reasonable and necessary to secure the interests of persons abroad, who may have lawfully acquired a lien on the ship, and who can have no means of knowing anything done to affect the title by an owner at home after the sailing of the ship. Thus, if the vessel should be hypothecated abroad after a sale of her at home, the hypothecation would take the place of the sale. So if she should be chartered or let to freight by the master or supercargo, having authority, the transfer at home must be subject to these charges on thè vessel abroad.20 So where a ship at sea belonging to a partnership was sold by one of the partners at home, and subsequently sold and possession delivered by the other partner abroad under whose control she then was, and who had no knowledge of the prior sale, it has been held that the second sale passed the title as against the former. These qualifications do not, however, extend to levying creditors, so as to invalidate the sale as against them if the buyer uses due diligence in taking possession upon the arrival of the vessel.1 Whisky stored in a bonded warehouse is not removable without the payment of the revenue tax, and therefore the fact that the whisky remains in such warehouse will not, it seems, render the sale invalid as against creditors of the seller or as

17. Cropo v. Kelly, 16 Wall. 610, Louisiana port and is there levied on 21 U. S. (L. ed.) 430; Badlam v. by the creditors of the seller. Thuret v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Jenkins, 7 Mart. O. S. (La.) 318, 12 Dec. 202; Portland Bank v. Stacey, Am. Dec. 508; Southern Bank V. 4 Mass. 661, 3 Am. Dec. 253; Lamb Ward, 14 La. Ann. 554, 74 Am. Dec. v. Durant, 12 Mass. 54, 7 Am. Dec. 446. 31; Bullington v. Curtis, 15 Mass. 527, 8 Am. Dec. 115; Ricker v. Cross, 5 N. 11. 570, 22 Am. Dec. 480.

Note: 11 Am. Dec. 208.

It seems to be otherwise, however, under the civil law as administered in Louisiana under which property does not pass by contract but by delivery, traditionibus non partis. Thuret v. Jenkins, 7 Mart. O. S. (La.) 318, 12 Am. Dec. 508 (referring to and explaining an earlier case).

18. Ricker v. Cross, 5 N. H. 570, 22 Am. Dec. 480.

19. Winslow v. Norton, 29 Me. 419, 50 Am. Dec. 601; Portland Bank v. Stacey, 4 Mass. 661, 3 Am. Dec. 253; Ricker v. Cross, 6 N. H. 570, 22 Am. Dec. 480. But see Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119.

20. Portland Bank v. Stubbs, 6 Mass. 422, 4 Am. Dec. 151; Lamb v. Durant, 12 Mass. 54, 7 Am. Dec. 31. See also Badlam v. Tucker, 1 Pick. (Mass.) 389, 11 Am. Dec. 202.

But where the sale takes place in a state governed by the common law, 1. Lamb v. Durant, 12 Mass. 54, between persons there resident, effect 7 Am. Dec. 31; Badlam v. Tucker, 1 will be given thereto in Louisiana if Pick. (Mass.) 389, 11 Am. Dec. 202. the vessel subsequently arrives at a

against his trustee in bankruptcy who succeeds to all the rights of the creditors.

3

319. Animals, Slaves, Estrays.-It seems that in case of a sale of cattle roaming at large, as in the earlier days on the western ranges, the execution of a bill of sale wherein the cattle are described by their brand, all of such brand being sold so as to obviate any necessity for a segregation to further identify those sold, and the intention of the parties being to transfer title to the buyer, is a sufficient constructive delivery to perfect the sale as against subsequent levying creditors of the seller, especially if the buyer is guilty of no subsequent delay in taking actual possession; and undoubtedly a good delivery and continued change of possession is clearly constituted by the act of the buyer in collecting them together, marking them with his brand, and turning them out to pasture on their accustomed range. It has also been held that if on the sale of all of a large band of sheep supposed to contain a certain number, it is unexpectedly found at the time and place of delivery that a considerable number have strayed, and the remainder are delivered, whereupon the purchaser institutes search for the strays without success, there is sufficient delivery of the missing sheep to consummate their sale as against a judgment creditor of the seller, who on finding them levies on and sells them under execution.5 While the institution of slavery was in existence a sale of a slave, who had run away, evidenced by a bill of sale, has been upheld as against subsequent levying creditors of the seller.6

320. Bulky or Ponderous Articles.-In case of the sale of bulky or ponderous articles which from their nature are not capable of a manual possession, the same indicia of a delivery and change of possession is not required to sustain the sale as against the creditors of the seller as in case of articles readily movable. Thus it has been held, in case of a sale of logs lying on the ice of a river and on the land of strangers, that no actual removal is necessary to render the

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2. Taney v. Penn. Nat. Bank, 232 U. S. 174, 34 S. Ct. 288, 58 U. S. ed.) 558.

3. Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135.

4. Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135. 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.

5. Kinney v. Rock Springs First Nat. Bank, 10 Wyo. 115, 67 Pac. 471, 98 A. S. R. 972.

6. Cocke v. Chapman, 7 Ark. 197, 44 Am. Dec. 536.

7. McDermott v. Kimball Lumber

Co., 102 Ark. 344, 144 S. W. 524, 39 L.R.A. (N.S.) 461; Kellogg v. Newspaper Co. v. Peterson, 162 Ill. 158, 44 N. E. 411, 53 A. S. R. 300; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245; Van Brunt v. Pike, 4 Gill (Md.) 270, 45 Am. Dec. 126; 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; Tognini v. Kyle, 17 Nev. 209, 30 Pac. 829, 45 Am. Rep. 442. See also Thompson Mfg. Co. v. Smith, 67 N. H. 409, 29 Atl. 405, 68 A. S. R. 679.

Notes: 56 Am. Dec. 643; 97 Am. Dec. 346; 53 A. S. R. 303.

sale valid against the creditors of the seller.8 So, in case of a sale of stacks of lumber, marking them with the name of the buyer, though they were left in the seller's lumber yard, has been upheld as a sufficient delivery as against a subsequent purchaser. Also in case

of a sale of charcoal in pits on the seller's land marking the pits with the buyer's name, who also employed a person to visit and look after the pits, has been held a sufficient change of possession to render the sale valid as against creditors of the seller. 10 On the other hand it has been held in the case of the sale of lumber piled in the lumber yard of the seller that pointing out to the buyer the piles of lumber sold with directions to take it away was not a sufficient delivery and change of possession to validate the sale as against subsequent attaching creditors, where for several months thereafter the buyer exercised no acts of ownership over the lumber.11

321. Control of Place Where Property Is Stored.-If the property after the sale continues to be on land or in buildings in the exclusive possession or control of the buyer, though there has been no formal, delivery, it is a sufficient change of possession to validate the sale as against a purchaser from or levying creditor of the seller.12 So if a person sells land and the personal property thereon, the entry on and possession of the land is ordinarily a sufficient taking of possession of the personalty to validate the sale of the latter as against creditors of the seller.18 And if the sale is of household furniture and the buyer takes a lease of the house containing it and enters under the lease it is a sufficient change of possession.14 Where the key to the building or room containing the property is delivered to the buyer, the building or room being locked and the buyer being thus given the control of the access thereto, this is also held a sufficient delivery to perfect the sale as against subsequent levying creditors or purchasers from the seller. 15

8. Sanborn v. Kittredge, 20 Vt. 632, inger v. Spatz, 128 Pa. St. 524, 18 50 Am. Dec. 58. Atl. 405, 15 A. S. R. 692.

9. McDermott v. Kimball Lumber Co., 102 Ark. 344, 144 S. W. 524, 39 L.R.A. (N.S.) 461.

10. Tognini v. Kyle, 17 Nev. 209, 30 Pac. 829, 45 Am. Rep. 442.

11. Coble v. Haskell, 14 Me. 303, 31 Am. Dec. 56 (this is recognized by the court as one of the border line cases). 12. Nichols v. Patten, 18 Me. 231, 36 Am. Dec. 713; 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. See also Hatch v. Standard Oil Co., 100 U. S. 124, 25 U. S. (L. ed.) 554; Renn

13. Sharon v. Shaw, 2 Nev. 289, 90 Am. Dec. 546; Wilson v. Hooper, 12 Vt. 653, 36 Am. Dec. 366.

14. Shumway v. Rutter, 8 Pick. (Mass.) 443, 19 Am. Dec. 340.

15. Kellogg Newspaper Co. v. Peterson, 162 Ill. 158, 44 N. E. 411, 53 A S. R. 300; 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; Chappel v. Marvin, 2 Aikens (Vt.) 79, 16 Am. Dec. 684. See also Reeves v. Sebean, 16 Ia. 234, 85 Am. Dec. 513.

322. Sale between Persons Residing Together Generally.-The necessity for a delivery and change of possession to validate a sale as against the seller's creditors rests on the ground that there should be some notoriety attending the act of sale, and hence the fact that the seller and buyer reside together on the premises on which the property sold is situated will not dispense with the necessity therefor, and ordinarily if there is no actual delivery and there is a continued use of the property by the seller as if no sale had been made, it will remain subject to levy at the suit of his creditors. 16 But in case of persons living together on the same premises there cannot ordinarily in the nature of things be the same open change of possession as in other cases and to complete the sale it would seem that it is not essential that the property sold be removed from the premises on which the parties live, even though the premises are owned by the seller. Thus, where a farmer sold hogs to his servant in payment for his services and the particular hogs sold were pointed out, it has been held that the fact that under the agreement they remained in the field with other hogs of the seller was not such a retention of possession by the seller as to render the sale invalid as against his attaching creditors.17 And where the purchaser of a farm at judicial sale took possession, and afterwards purchased the personalty thereon from his vendor, and leased it to the vendor's wife, who, with her husband, and without removing the property, remained on the farm, the husband being hired as a laborer by the buyer, it has been held that it cannot be ruled, as matter of law, that the delivery of possession of the personalty is insufficient as against the vendor's creditors.18 On the other hand. where a farmer sold a horse to his farm servant which remained as before in the seller's barn, the buyer, however, taking care of it, breaking it and shoeing it and paying the seller for its feed, it has been held that there was not a sufficient change of possession to validate the sale as against the seller's creditors. 19

323. Husband and Wife; Parent and Child.-According to the better view though the parties to a sale are husband and wife living together, a sale by the one to the other may be invalid as against the creditors of the seller unless there is a change of possession; the exist ence of the marriage relation does not dispense with the necessity for a change of the ostensible possession; 20 and if the husband after a sale to his wife is permitted to use the property in the same manner as before, it is generally held that there has not been a sufficient delivery

16. McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200; Lehr v. Brodbeck, 192 Pa. St. 535, 43 Atl. 1006, 73 A. S. R. 828. See FRAUDULENT CONVEYANCES, vol. 12, p. 563.

17. Webster v. Anderson, 42 Mich. 554, 4 N. W. 288, 36 Am. Rep. 452.

18. Renninger v. Spatz, 128 Pa. St. 524, 18 Atl. 405, 15 A. S. R. 692.

19. Hull v. Sigsworth, 48 Conn. 258, 40 Am. Dec. 167.

20. Murphy v. Mulgrew, 102 Cal. 547, 36 Pac. 857, 41 A. S. R. 200.

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