Sec 617

Under a conditional sale, a title passes which, though defeasible, is attachable by the vendee's creditors. Thus in an action for trover in Massachusetts, in 1881, for the conversion of a mowing machine, the evidence was, that the plaintiffs sold the machine to C. in June, 1879, upon the condition that he should pay one half of the price on August 15, and the other half on September 20, of the same year, and that the machine should be the property of the plaintiffs until paid for. The defendant, a deputy sheriff, attached the machine as the property of C. on July 9, and sold it on execution August 22, 1879. The plaintiffs' writ was dated July 28, 1879. At the trial in the superior court, a verdict was directed for the defendant, and, by agreement of the parties, the case was reported to the supreme judicial court. This was affirmed by the supreme court. - "The agreement between the plaintiffs and C," said Morton, J., "amounted to a conditional sale, liable to be defeated upon the non-performance of the conditions. C, after the delivery to him, had a rightful possession which the plaintiffs could not interfere with until a failure by him to perform the condition. He had an interest in the property which he could convey, and which was attachable by his creditors, and which could be ripened into an absolute title by the performance of the conditions.2 Even if the sale by the defendant without performing the condition made him a trespasser ab initio, so that the plaintiffs could at any time after the breach of the condition maintain trover against him; yet the difficulty is, that, at the time the plaintiffs commenced this suit, there had been no breach of the condition, and they had no right of possession. In order to maintain trover, a plaintiff must show that at the time he commences his suit he has possession or a right to the immediate possession.1 It follows that this action was prematurely brought, and that the ruling of the superior court was correct."2.

Defeasible title passes to vendee.

1 Semmes v. Ins. Co., 13 Wall. 158.

2 Vincent v. Cornell, 13 Pick. 294;

Day v. Bassett, 102 Mass. 445; Currier v. Knapp, 117 ib. 324.

1 Winship v. Neale, 10 Gray, 382; Ring v. Neale, 114 Mass. 111; Hardy v. Munroe, 127 ib. 64.

2 Newhall v. Kingsbury, 131 Mass. 445.