Nicholson v. Bower. to the purchaser by railway, and on arrival at the railway warehouse, a bulk sample was taken to the purchaser by his orders, and found to correspond, but the purchaser, knowing himself to be insolvent, told his carman, "Don't cart it home at present." The sale was by parol, and the impression of the judges evidently was, that the transit was at an end, so that the vendor's right of stoppage was gone; but the value being over 107., the sale was incomplete under the statute of frauds, unless the vendor had accepted as well as received the goods, and although it might be his duty to accept when he found that the bulk accorded with the sample according to his verbal agreement, yet if he chose not to accept, the sale was incomplete, and his object of returning the goods to his vendor would thus be accomplished. In the language of Erle J., in commenting on the buyer's action," The meaning of all this seems to be this: I will hold my hand in honesty the wheat ought to go back as I cannot pay for it; and he sends the next day a notice to the vendor, and is willing that it should get back to him, if by law it might. The bankrupt broke his contract, mayhap, by not accepting, but that does not show that there was an acceptance." But even if the property had passed, it may be that the possession is not yet obtained, and the buyer may then honestly reject it without exposing himself to the charge of giving an undue preference to one creditor over the others. The different cases in which buyers have adopted this course and thus kept unimpaired the vendor's right of stoppage in transitu are referred to in the note. (e) § 501. The reader is also referred to a very singular case, that of Dixon v. Baldwen, (ƒ) where the king's bench decided that, although the transit was at an end, and although both the property and possession were confessedly in the vendee, yet under the special circumstances of the case the buyer had not laid himself open to a charge of fraudulent preference by rescinding the contract, because it was done by advice of counsel, after a statement of his intention to do so, made to his creditors Dixon v. Baldwen. (e) Atkins v. Barwick, 1 Str. 165; 10 Mod. 432 Fortes. 353; Salte v. Field, 5 T. R. 211; Bartram v. Farebrother, 4 Bing. 579; Smith v. Field, 5 T. R. 402; James v. Griffin, 2 M. & W. 623; Siffken v. Wray, 6 East, 371; Heineckey v. Erle, 28 L. J. Q. B. 79, and 8 E. & B. 410; Bolton v. Lancashire & York. Railway Company, L. R. 1 C. P. 431; 35 L. J. C. P. 137; Whitehead v. Anderson, 9 M. & W. 529. See remarks of Parke B. in Van Casteel v. Booker, at p. 14; 18 L. J. Ex. 9; [Grout v. Hill, 4 Gray, 361, 367.] (f) 5 East, 175. at a meeting called by him, and not done with the voluntary intention of giving an undue advantage. The judges were not unanimous, and the question was considered by the majority rather as one of fact than of law. Edwards v. § 502. In America, it is somewhat remarkable that the ruling of the king's bench, in Edwards v. Harben, (g) has not Decisions only been followed to its full extent, but the doctrine in America. has been pushed even beyond the principle there established. Chancellor Kent erroneously supposes the Eng- followed. lish law to be unsettled on the question, (h) but he states it to be the established law in the federal courts of the United States, that an absolute bill of sale is itself a fraud in law unless possession accompanies and follows the deed; and in a recent case (i) it was even decided that the bona fides of the transaction between the parties, and the fact that possession remained with the vendor for justifiable purposes, would not suffice to render the sale valid. This seems also to be the doctrine of the state courts in Virginia, (k) South Carolina, (1) Pennsylvania, (m) Illinois, (n) (g) 2 T. R. 587. (h) 2 Kent, 521. (i) The Romp, Olcott's Adm. 196, cited in note at p. 697, 2 Kent, 11th ed. [See Hamilton v. Russell, 1 Cranch, 309; Conard v. Atlantic Ins. Co. 1 Peters, 386.] (k) [The doctrine and cases were thoroughly reviewed in Davis v. Turner, 4 Gratt. 422, and substantially the English doctrine was established in Virginia. See Forkner v. Stewart, 6 Gratt. 198, 204; Baltimore & Ohio R. R. Co. v. Glenn, 28 Md. 287, 324, 325; Curd v. Miller, 7 Gratt. 185.] intent of the parties, and becomes a question for the court and not for the jury. Young v. McClure, 2 Watts & S. 147, and cases cited. In Garman v. Cooper, 72 Penn. St. 37, Thompson C. J. said: “On a sale of goods and chattels they must either pass out of the seller to the buyer, or the seller must pass away from them, leaving them in the exclusive possession of the buyer. The transfer must be actual, continuing, and exclusive in him. In all cases where the delivery of possession has been but temporary, and followed by a return to the seller, the law regards it as colorable and fraudulent in law." See (1) [See Terry v. Belcher, 1 Bailey, 568; Tilson v. Terwilliger, 56 N. Y. 273; WorSmith v. Henry, 2 Ib. 118.] (m) [See Born v. Shaw, 29 Penn. St. 288; Dawes v. Cope, 4 Binn. 258; Babb v. Clemson, 10 Serg. & R. 419; Shaw v. Levy, 17 Ib. 99; Davis v. Bigler, 62 Penn. St. 242; Maynes v. Atwater, 88 Ib. 496. It is held in Pennsylvania that, as against creditors, if the possession does not follow as well as accompany a sale, it is a fraud in law, without regard to the man v. Kramer, 73 Penn. St. 378; Gray v. Sullivan, 10 Nev. 416.] (n) [See Thornton v. Davenport, 1 Scam. 296; Simmons v. Jenkins, 76 Ill. 479; Johnson v. Holloway, 82 Ib. 334; Ticknor v. McClelland, 84 Ib. 471; Goodheart v. Johnson, 88 Ib. 58; Dunlap v. Epler, Ib. 82; Greenebaum v. Wheeler, 90 Ib. 296; Dunning v. Mead, Ib. 376.] New Jersey, (0) Vermont, (p) and Connecticut, (q) while the English rule pervades the other states. (r) (0) [See Sterling v. Van Cleve, 7 Halst. 285; Mount v. Hendricks, 2 South. 738; Cumberland Bank v. Hann, 4 Harr. (N. J.) 166.] (p) [Houston v. Howard, 39 Vt. 54; Barrett J. in Daniels v. Nelson, 41 Ib. 161. In cases where the evidence is doubtful or conflicting, the question of possession is left to the jury in Vermont. Rothchild v. Rowe, 44 Vt. 389. Taking possession of land under a lease is good possession of the personal property upon it and sold with it. Rothchild v. Rowe, supra.] (7) [See Norton v. Doolittle, 32 Conn. 405; Wells v. Camp, 14 Ib. 219; Crouch v. Carrier, 16 Ib. 505; Carter v. Watkins, 14 Ib. 240; Hall v. Gaylor, 37 Ib. 550, 554; Webster v. Peck, 31 Ib. 496, 500; Hatstat v. Blakeslee, 41 Ib. 301; Kirtland v. Snow, 20 Ib. 23; Mead v. Noyes, 44 Ib. 487. In Capron v. Porter, 43 Conn. 383, Loomis J. said: "That the retention of the possession of personal property by the vendor after a sale raises a presumption of fraud which cannot be repelled by any evidence that the transaction was bonâ fide and for a valuable consideration, is still adhered to and enforced by the courts in this state with undiminished vigor, as a most important rule of public policy."] (r) [Moog v. Benedicks, 49 Ala. 512; Phillips v. Reitz, 16 Kans. 396. But see, as to California, Chenery v. Palmer, 6 Cal. 119; as to Florida, Gibson v. Love, 4 Fla. 217; as to Iowa, Prather v. Parker, 24 Iowa, 26; Woodworth . Byerly, 43 Ib. 106; as to Missouri, King v. Bailey, 6 Mo. 575; Foster v. Wallace, 2 Ib. 231. The doctrines of the different states on this subject are well stated in Hare & Wallace's note to Twyne's case, 1 Smith's L. C. 1, to, which the reader is referred. Some of the more recent cases not there referred to are cited supra and infra. Burnham v. Brennan, 10 J. & Sp. 49; Burnham v. Brennan, 74 N. Y. 597; Stout v. Rappelhagen, 51 How. Pr. 75; Einstein v. Chapman, 10 J. & Sp. 144; Southard v. Benner, 72 N. Y. 424; Hollacher v. O'Brien, 5 Hun, 277; Inglehart v. Haberstro, 19 Alb. L. J. 400; Dutcher v. Swartwood, 15 Hun, 31; Southard v. Pinckney, 5 Abb. N. C. 184; City Bank v. Westbury, 16 Hun, 458; Schoonmaker v. Vervalen, 9 Ib. 138; Price v. Pitzer, 44 Md. 521; Kreuzer v. Cooney, 45 Ib. 582; Brett v. Carter, 2 Low. 458; Re Rawson, Ib. 519; Shaw v. Wilshire, 65 Me. 485; New Albany Ins. Co. v. Wilcoxson, 21 Ind. 355; Mobley v. Letts, 61 Ib. 11; Goodrich v. Michael, 3 Cal. 77; Danby v. Sharp, 2 McArthur, 435; Bosse v. Thomas, 3 Mo. App. 472; State v. Bell, Ib. 102; Wright v. McCormick, 67 Mo. 426; Molitor v. Robinson, 40 Mich. 200; Webster v. Bailey, Ib. 641; Wheeler v. Konst, 46 Wis. 398; Blakeslee v. Rossman, 43 Ib. 116; Orton v. Orton, 7 Oreg. 478; McCully v. Swackhamer, 6 Ib. 438. In New Hampshire the doctrine of Twyne's case is quite strictly maintained. Coburn v. Pickering, 3 N. H. 424; Coolidge r. Melvin, 42 Ib. 522; Lang v. Stockwell, 55 Ib. 561; Plaisted v. Holmes, 58 Ib. 293; Sumner v. Dalton, Ib. 295. See Wilson r. Sullivan, 58 N. H. 260; Clark v. Tarbell, 57 Ib. 328. See, as to the California doctrine, Stevens v. Irwin, 15 Cal. 503; Chevey v. Palmer, 6 Ib. 119; Engles v. Marshall, 19 Ib. 320; Godchaux v. Mulford, 26 Ib. 316; Woods v. Bugbey, 29 Ib. 466; Watson v. Rodgers, 53 Ib. 401. See Hestal v. Myles, 53 Cal. 623, in which, under a statute which provides that every transfer of personal property "is conclusively presumed" to be fraudulent and void as against creditors of the vendor while he remains in possession, if it be not accompanied by an immediate delivery and followed by an actual and continued change of possession, it was held that the mere fact that the vendee had assumed control was not conclusive, but that it was for the jury to determine whether there was an actual and continued possession, and whether there was such a change of the apparent custody of the goods as to put one dealing with the vendor in respect to the goods upon inquiry.] Sale void when entered into SECTION I. AT COMMON LAW. § 503. THE contract of sale, like all other contracts, is void when entered into for an illegal consideration, or for purposes violative of good morals or prohibited by the lawfor illegal giver. The thing sold may be such as in its nature cannot form the subject of a valid contract of sale, as an purpose. |