The thing sold need not be in the possession of the vendor, and if it has been tortiously converted, the owner may sell it, and give title, and the purchaser may after demand and refusal maintain trover for it. (jj)
A mere contingent possibility, not coupled with an interest, is no subject of sale; as all the wool one shall ever have; (k)1 or
(i) 2 Kent, Com. 469. - The same rule exists in the French law. Code Napoleon, No. 1601.
(j) See also Farrer v. Nightingal, 2 Esp. 639, where Lord Kenyon said: " I have often ruled, that where a person sells an interest, and it appears that the interest which he pretended to sell was not the true one; as, for example, if it was for a lesser number of years than he had contracted to sell, the buyer may consider the contract as at an end, and bring an action for money had and received, to recover back any sum of money he may have paid in part performance of the agreement for the sale; and though it is said here, that upon the mistake being discovered in the number of years of which the defendant stated himself to be possessed, he offered to make an allowance pro tanto, that makes no difference in the case; it is sufficient for the plaintiff to say, that is not the interest which I agreed to purchase."
(jj) Tome v. Dubois, 6 Wall. 548; Webber v. Davis, 44 Me. 147; Hubbard v. Bliss, 12 Allen, 590; McKee v. Judd, 12 N. Y. 622.
(k) See Grantham v. Hawley, Hob. 132. See Langton v. Horton, 1 Hare, 556. But a valid sale may be made of the wine that a vineyard is expected to produce; or the grain that a field is expected to grow; or the milk that a cow may yield during the coming year, or the future young born of a female animal then owned by the vendor, Hull v. Hull, 48 Conn. 250; Sawyer v. Gerrish, 70 Me. 254; McCarty v. Blevins, 5 Yerg. 195; Congreve v. Evetts, 26 E. L. & E. 493; s. c. 10 Exch. 298; Wilkinson v. Ketler, 69 Ala. 435; Stephens v. Tucker, 55 Ga. 543; Arques v. Wasson, 51 Cal. 620; Cutting Packing Co. v. Packers' Exchange, 86 Cal. 574; Sanborn v. Benedict, 78 Ill. 309; Cotten v. Willoughby, 83 N. C. 75; Rawlings v. Hunt, 90 N. C. 270; Heald v. Builders' Ins. Co., 111 Mass. 38; Headrick v. Bratthe sheep which a lessee has covenanted to Leave at the end of an existing term. If rights are vested, or possibilities are distinctly connected with interest or property, they may be sold. (l) But if one sells what he has not now, and has made no contract for purchasing, and has no definite right to expect, as by consignment, but intends to go into the market and buy, it has been held that he cannot enforce this contract; (m) and * although this is questioned, such a contract if enforce- able, as by the later authority and the better reason it seems to be, must certainly be regarded as a contract for a future sale, and not as a present contract of sale; and therefore the property in the thing when it is acquired by the proposed vendor, does not pass at once to the proposed vendee until the actual sale be made. (n)1 tain, 63 Ind. 438; or the wool that shall * hereafter grow upon his sheep. But see Screws v. Roach, 22 Ala. 675; Collier v. Faulk, 69 Ala. 58; Redd v Burrus, 58 Ga. 574; Gittings v. Nelson, 86 Ill. 591; Hutchinson v. Ford, 9 Bush, 318; Pennington v. Jones, 57 Ia. 37.
1 So a sale of fish to be caught passes no title to the fish when caught. Low v. Pew, 108 Mass. 347.
(/) See Jones v. Roe, 3 T. R. 88; Thrall v Hill, 110 Mass. 328, and cases cited in note (k) supra. But the expectancy of an heir presumptive, or apparent (the fee-simple being in the ancestor), is not an interest or a possibility capable of being the subject of a contract. Carleton v. Leighton, 3 Meriv. 667.
(m) Bryan v. Lewis, Ry. & M. 386. And see Lorymer v. Smith, 1 B. & C. 1; 8. c. 2 Dow. & R. 23, Abbott, C. J.; Head v. Goodwin, 37 Me. 187; Stanton v. Small, 3 Sandf. 230; Noves v. Jenkins, 55 Ga. 586; Brown v. Combs, 63 N. Y. 598. But this doctrine was directly overruled in the case of Hibblewhite v. McMorine, 5 M. & W. 462, where Parke, B., in delivering the judgment of the court, is reported to have said: " I have always entertained considerable doubt and suspicion as to the correctness of Lord Tenterden's doctrine in Bryan v. Lewis, it excited a good deal of surprise in my mind at the time; and when examined I think it is untenable. I cannot see what principle of law is at all affected by a man's being allowed to contract for the sale of goods, of which he has not possession at the time of the bargain, and has no reasonable expectation of receiving. Such a contract does not amount to a wager, inasmuch as both the contracting parties are not cognizant of the fact that the goods are not in the vendor's possession; and even if it were a wager, it is not illegal, because it has no necessary tendency to injure third parties." See also" Wells v. Porter, 2 Bing. N. C. 722, Bosanguet, J.; Mortimer v McCallan, 6 M. & W. 58; Stanton v. Small, 3 Sandf. 230.
(n) Black v. Webb, 20 Ohio, 304; Stanton v. Small, 3 Sandf. 230; Lunn v Thornton, 1 C. B. 385; Langton v. Hig-gins, 4 H. & N. 402.
1 Equity, however, will give effect to a conveyance of property not yet acquired or even in existence, potentially or otherwise. Holroyd v. Marshall, 10 H. L. C. 193; Lazarus v Andrade, 5 C. P. D. 318; Pennock v. Coe, 23 How. 117; Brett v. Carter, 2 Low. 458; Apperson v. Moore, 30 Ark. 56; Phillips v. Winslow, 18 B. Monroe, 431; Morrill v. Noyes, 56 Me. 458; Sillers v. Lester, 48 Miss. 513: Smithurst v. Edmunds, 14 N. J. Eq. 408; McCaffrey v. Woodin, 65 N. Y. 459; Kribbs v Alford, 120 N. Y. 519; Philadelphia, etc. Co. v. Woelpper, 64 Penn. 366; Williams v Winsor, 12 R. I. 9.
But see Moody v. Wright, 13 Met. 17; Blanchard v. Cooke, 144 Mass. 207 , Bennett v. Bailey, 150 Mass. 257; Phelps v. Murray, 2 Tenn. Ch. 746; Hunter v. Bosworth, 43 Wis. 583, Case v. Fish, 58 Wis. 56.
Equity will not give effect to such a conveyance unless the property be described with sufficient particularity for identification. Belding v. Heed, 3 H. &, C. 955; In re Count D'Epineuil, 20 Ch. D. 758.
Most of the cases referred to above relate to mortgages, but the question seems to be the same in the case of a mortgage as of a sale.
A sale may be good in part, and void as to the residue; good as between the parties, but void as to creditors; good as to some of the creditors, but void as to others. (o)