and change of possession to validate the sale as against the husband's creditors. On the other hand if the wife has assumed the open and exclusive control of the property the sale will be upheld, and the fact that the husband wrongfully and without her consent regains the possession and resells the property cannot affect her rights. Evidence of the assignment to her by her husband of a fire insurance policy on the property, and of her lease in her own name of the building or barns, where the property is kept by her, though cumulative, is admissible to support her claim of open and exclusive possession. Though a sale directly or indirectly to the seller's wife may be invalid on account of his retention of possession, yet when after such sale the wife exchanges the chattel with a third person, the fact that the chattel received by her in exchange passes into the possession of the husband cannot affect her title to it as against his levying creditors, since she derives title from the stranger and her husband's possession is in no sense the retention of possession by a seller. A parent may undoubtedly sell and transfer the title to chattels to his child and in case of a sale by a father to his minor child while they are living together, the fact that the father retains the nominal or actual possession for his child has been held not necessarily to render the sale invalid as against the father's creditors, as the father's continued possession will be deemed that of his child, due to his position as the natural guardian of the child and his duty to look after the child's property.5 324. Temporary Change of Possession Generally.-It has been determined from an early date that a mere temporary possession taken by the buyer is not ordinarily sufficient to sustain the sale as against third persons, if the buyer permits the property immediately to go back and remain in the possession of the seller. And it has been held that possession redelivered to the seller by the agent of the buyer, in whose possession the property is, though unauthorized, will, if made in close proximity to the sale, let in the seller's subsequent attaching creditors. Where, however, the possession has been taken and retained by the buyer, in such manner, and for such length of time, as would have answered the requirements of the law, and the property 1. Murphy v. Mulgrew, 102 Cal. 547, 36 Pac. 857, 41 A. S. R. 200; McKee v. Garcelon, 60 Me. 165, 11 Am. Rep. 200; Wheeler v. Selden, 63 Vt. 429, 21 Atl. 615, 25 A. S. R. 771, 12 L.R.A. 600 and note. 2. Wiley v. McGrath, 194 Pa. St. 498, 45 Atl. 331, 75 A. S. R. 709. 3. Wiley v. McGrath, 194 Pa. St. 498, 45 Atl. 331, 75 A. S. R. 709. 4. Caswell v. Jones, 65 Vt. 457, 26 Atl. 529, 36 A. S. R. 879, 20 L.R.A. 503. 5. Hargrove v. Turner, 112 Ga. 134, 37 S. E. 89, 81 A. S. R. 24. 6. Coburn v. Pickering, 3 N. H. 415, 14 Am. Dec. 375; Davis v. Bigler, 62 Pa. St. 242, 1 Am. Rep. 393; Fletcher v. Howard, 2 Aikens (Vt.) 115, 16 Am. Dec. 686; Morris v. Hyde, 8 Vt. 352, 30 Am. Dec. 475. 7. Morris v. Hyde, 8 Vt. 352, 30 Am. Dec. 475. is then intrusted to the buyer, temporarily and for a special purpose, the sale will not thereby be rendered invalid as against the seller's creditors. Thus where the keeper of a livery stable purchased a sulky which was delivered to him, the fact that in the course of his livery business he shortly thereafter hired it to the seller will not render the sale invalid as against the seller's creditors. So where cows were sold in good faith and delivered to the buyer in the presence of witnesses on the seller's farm, and then redelivered to the seller to hold as bailee of the buyer for hire, the transaction was upheld as against levying creditors of the seller.10 The wrongful resumption of possession by the seller without the consent of the buyer constitutes a tort merely and of course will not prevent the sale from being effective as against his creditors or a subsequent purchaser.11 325. Retention of Possession as Employee of Buyer. The fact that the buyer after the sale employs the seller and in the course of such employment the property is intrusted to his care will not itself constitute a retention of possession by the seller rendering the sale invalid as against the seller's creditors.12 Thus the fact that the seller is employed to assist the buyer to thresh grain in a barn, being part of the property conveyed, is not such a retention of possession as will invalidate the sale.18 On the other hand while it is possible for a buyer of chattels to employ the seller and yet make such a change of possession as will support the sale, yet if the seller is left in entire charge of the property which he has sold, or so apparently in charge that there is no visible change in its possession, and nothing to indicate that any change has taken place in the title or possession, then there is no such actual change of possession as is required by law.14 326. Sale by Cotenant.-Where personalty is held by cotenants, a sale by one to a third person is not rendered invalid as to the seller's levying creditors by the failure of the buyer to take possession, the property at the time of the sale having been in the possession of the other co-owner, in whose possession it continued.15 In such a case no 8. Stevens v. Irwin, 15 Cal. 503, 76 Am. Dec. 500; Goodwin v. Goodwin, 90 Me. 23, 37 Atl. 352, 60 A. S. R. 231; French v. Hall, 9 N. H. 137, 32 Am. Dec. 341; Morris v. Hyde, 8 Vt. 352, 30 Am. Rep. 475. 9. French v. Hall, 9 N. H. 137, 32 Am. Dec. 341. 10. Goodwin v. Goodwin, 90 Me. 23, 37 Atl. 352, 60 A. S. R. 231. 11. Cook v. Pinkerton, 81 Ga. 89, 7 S. E. 171, 12 A. S. R. 297. 12. Godchaux v. Mulford, 26 Cal. 316, 85 Am. Dec. 178; Claflin v. Rosenberg, 42 Mo. 439, 97 Am. Dec. 336; Wilson v. Hooper, 12 Vt. 653, 36 Am. 13. Wilson v. Hooper, 12 Vt. 653, 36 Am. Dec. 366. 14. Etchepare v. Aguirre, 91 Cal. 288, 27 Pac. 668, 929, 25 A. S. R. 180. 15. Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538, 29 A. S. R. 111; Yank v. 75 A. S. R. 522; Ricker v. Cross, 5 Bordeaux, 23 Mont. 205, 58 Pac. 42, N. H. 570, 22 Am. Dec. 480; Love v. Schmidt, 26 Okla. 648, 110 Pac. 665, Ann. Cas. 1912B 458, 31 L.R.A. (N.S.) 1162. Notes: 31 L.R.A. (N.S.) 1162; Ann. Cas. 1912B 460. notice of the sale need be given the co-owner having the possession. 16 It is also held that if the property is in the possession of a third person holding for all the cotenants, a sale by one cotenant of his interest is good as against his creditors, without any necessity for the buyer to take possession, the continued possession by such third person not being considered a retention of possession by the seller.17 If the seller, however, was in possession at the time of the sale of his interest, his continued retention of possession will render the sale invalid as against his levying creditors to the same extent as though he were the sole owner.18 327. Property in Possession of Agent or Bailee.-Where chattels in the hands of the seller's agent or bailee are sold, the fact that they remain in the possession of such third person is not necessarily such a retention of possession by the seller as to render the sale invalid as against the seller's creditors. 19 And undoubtedly if the seller of goods in the care and keeping of a third person directs him to deliver them to the buyer, and the party holding the goods, on notice and application of the buyer, assents to retain the goods for him, it is a sufficient delivery and transfer; after such consent on the part of the third person, his possession cannot be considered a retention of possession by the seller.20 Mere notice of the sale given to such third person, without any express consent on his part to the sale or agreement to hold for the buyer, has been held sufficient to validate the sale as against the seller's creditors. In case of a sale of goods in the hands of the owner's agent or bailee it is immaterial that after the third person is notified of the sale, the goods sold, as in case of the sale of sheep, are mingled with other goods of a similar character owned and held by such third person for the seller. In case of a sale of goods in the care of a warehouseman it has been held that notice of the sale must be given to the warehouseman in order to render the sale effective as against attaching creditors of the seller; this is based on the theory that until the bailee is notified of the sale his possession remains that of the seller and can in no way be deemed the possession of the buyer; and it has been held that this necessity for notice is not 16. Yank v. Bordeaux, 23 Mont. 205, 58 Pac. 42, 75 A. S. R. 522. 17. Notes: 31 L.R.A. (N.S.) 1164; Ann. Cas. 1912B 460. 18. Brown v. O'Neal, 95 Cal. 262, 30 Pac. 538, 29 A. S. R. 111. 19. Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479; Barney v. Brown, 2 Vt. 374, 19 Am. Dec. 720; Wilson v. Hooper, 12 Vt. 653, 36 Am. Dec. 366. 20. Van Brunt v. Pike, 4 Gill (Md.) 270, 45 Am. Dec. 126; Barney v. Brown, 2 Vt. 374, 19 Am. Dec. 720; Note: 97 Am. Dec. 348. 1. Tuxworth v. Moore, 9 Pick. (Mass.) 347, 20 Am. Dec. 479. 2. Barney v. Brown, 2 Vt. 374, 19 Am. Dec. 720. 3: Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433 (the court in this case, however, recognizes the difficulty of reconciling its holding with the previous case of Green Bay First Nat. obviated by the fact that a warehouse receipt non-negotiable in form, as a symbol of the property, is transferred to the buyer at the time of the sale. If, however, the warehouse receipt is negotiable in form, as where the bailee's contract is to deliver to the bailor or his order, it seems to be the general view that the transfer of the receipt by indorsment will operate as a symbolical delivery of the property and change of possession sufficient to protect the property from subsequent levy at the suit of the seller's creditors, as by the form of the receipt the bailce has impliedly consented in case of a transfer of the receipt to hold the property as bailee of the transferor. Where goods are sold while in transit, by the assignment of the bill of lading taken to the order of the shipper, this will be effective to transfer the title, so as to prevent the goods from being thercafter levied on at the suit of the shipper's creditors. In some cases the view that a bailee must at least be notified of the sale to render it valid as against the creditors of the seller has not met the approval of the courts, for the reason that the bailee's assent or dissent can have no effect on the validity of the sale; and where the chattels sold were held at the time by a third person under a lease for a term of years, it has been expressly held that it is unnecessary to notify such lessee of the sale in order to render it valid against levying creditors of the seller. The same has been held true where the chattel was in the hands of a bailee for hire and the buyer used all reasonable diligence to gain possession. Also where the goods sold were on storage with a warehouse the transfer to the buyer of the warehouse receipt, though such receipt was nonnegotiable in form, has been upheld as against levying creditors of the seller, though no notice of the transfer was given to the warehouseman prior to the levy.10 323. Property in Possession of Servant.-A distinction is made. between a sale of goods in the hands of a bailee or agent and goods in the hands of a mere servant. A sale of goods in the possession Bank v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92); Gill v. Frank, 12 Ore. 507, 8 Pac. 764, 53 Am. Rep. 378. 4. Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433; Gill v. Frank, 12 Ore. 507, 8 Pac. 764, 53 Am. Rep. 378. 5. Gil v. Frank, 12 Ore. 507, 8 Pac. 764, 53 Am. Rep. 378 (explaining and dis.inguishing an earlier case for the reason that the warehouse receipt was negotiable in form). See also Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Dec. 433, wherein the court seems inclined to the view stated above though the question is left undecided. 6. Finch v. Gregg, 126 N. C. 176, 35 S. E. 251, 49 L.R.A. 679, overruled on another point by Mason v. A. E. Nelson Cotton Co., 148 N. C. 495, 62 S. E. 625, 128 A. S. R. 635, 18 L.R.A. (N.S.) 1223. 7. Corning v. Records, 69 N. H. 390, 46 Atl. 462, 76 A. S. R. 178, disapproving Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433. 8. Corning v. Records, 69 N. H. 390, 46 Atl. 462, 76 A. S. R. 178. 9. Ricker v. Cross, 5 N. II. 570, 22 Am. Dec. 480. 10. Gibson v. Stevens, 8 How. 384, 12 U. S. (L. ed.) 1123. of a mere servant of the seller whose possession to all the world is that of his master, though notice of the sale is given to the servant, is not upheld unless there is some further change of possession, as the possession of a mere servant or hired man is but the possession of the master, and does not, like the possession of other third persons, put the creditor on inquiry.11 And where hay in a barn on a farm carried on by the seller's hired man was sold and left in the barn, though the hired man was notified of the sale and agreed to take care of the hay for the buyer, it was held that there was not a sufficient change of possession to protect the property from being subject to levy at the instance of creditors of the seller.19 So where a lessee of a farm sold animals which on his removal from the farm and while the lease was still in existence remained on the farm in the care of his servant, it has been held that there was not a sufficient change of possession to render the sale effective as against levying creditors of the seller; 13 and the same has been held true where the household furniture of a hotel carried on by a manager was sold and notice of the sale given to the manager, who continued to carry on the hotel for the seller. 14 XI. REMEDIES OF BUYER GENERALLY 329. In General. If a sale is executed and title to the property has passed to the buyer and he has the present right to possession he may of course maintain an action of replevin to recover the same.15 And without resort to legal proceedings, as in case of other owners of personal property, if he can do so without a breach of the peace. he may take the property from the seller and in so doing use the force. necessary to overcome the seller's resistance without incurring any civil liability to the seller therefor.16 And a sale of chattels, which are at the time on the land of the seller, will authorize an entry on the land to remove them, if, by the express or implied terms of the sale, that is the place where the buyer is to take them. In such a case a license is implied, because it is necessary in order to carry the sale into complete effect; and is, therefore, presumed to have been in con 11. Sharon v. Shaw, 2 Nev. 289, 90 Am. Dec. 546; Moore v. Kelley, 5 Vt. 34, 26 Am. Dec. 283. Note: 67 Am. Dec. 742. 12. Sleeper v. Pollard, 28 Vt. 709, 67 Am. Dec. 741. 13. Moore v. Kelley, 5 Vt. 34, 26 Am. Dec. 283. 14. Monmouth Second Nat. Bank v. Gilbert, 174 Ill. 485, 51 N. E. 584, 66 A. S. R. 306. 15. See supra, par. 274 et seq., as to when title passes to the buver. 16. Note: 6 Ann. Cas. 503. As to the right of a seller to retake possession by force where he has rescinded the sale for the fraud of the buyer, see infra, par. 606. And as to the right of the seller under a conditional sale to retake possession by force, sce infra, par. 779. And as to the general liability for assault in the recapture of property, see ASSAULT AND BATTERY, vol. 2, pp. 560-562. |