Upon a completed sale the property in the thing sold passes to the purchaser; one of these things implies the other; if the * property passes then it is a completed sale; and if a completed sale then the property passes. (v) And no bill
(r) See Kelly v. Solari, 9 M. & W. 54; Lucas v. Worswick, 1 Mo. & Rob. 293; Webb v. Odell, 49 N. Y. 583; Bowen v. Sullivan, 62 Ind. 281; Kyle v. Kavanagh, 103 Mass. 35G; Harvey v. Harris, 112 Mass. 32. See Hills v. Snell, 104 Mass. 173. As to the sale being controlled by the intention of the parties, see Hut-hacher v. Harris's Adm'r, 38 Pa. 491. In this case there was an administrator's sale at auction, and a purchaser of a block of wood upon which some machinery was mounted, subsequently discovered treasure of considerable value, which had been concealed within the block by the intestate, and which was held not to pass by the sale.
(s) See post, p. *540, and ch. v. on Warranty.
(t) See ante, p. *479, et seq. See also Routledge v. Grant, 4 Bing. 653; Bean v. Burbank, 16 Me. 458.
(u) Mclntyre v. Parks, 3 Met. 207; Frank v. Hoey, 128 Mass. 263; Arnold v.
Prout, 51 N. H. 587; Sarbecker v State, 65 Wis. 171, 175.
(v) Bayley, J., in Simmons v. Swift, .5 B. & C. 862'; Dixon v. Yates, 2 Nov. & M. 202, Parke, .J.; Atkin v. Barwick, 1 Stra. 167, where Fortesque, J., says; " Property by our law may be divested without an actual delivery; as a horse in a stable." It is exactly otherwise in the Roman civil law, and the laws of those nations in Europe which adopt the civil law as the basis of their law. The property [dominium) does not pass until delivery. Thus, if a seller retains the thing sold, to be delivered a week hence, and in the mean time becomes insolvent, the buyer does not hold the thing, but it goes with his assets to the assignees. All the buyer holds is a claim against the seller for the value of the thing, and for this debt of the seller the buyer takes only his dividend like other creditors; for by a sale only, without delivery, the buyer acquires only a jus ad rem and not a jus in re. See or memorandum subsequently sent in, can by its terms vary the contract. (vv) If it be sold for cash and the price be not paid, or if it be sold on a credit, but by the terms of the bargain is to remain in the hands of the vendor, the vendor has a lien on it for the price; (w) and only payment or tender gives the vendee a right to possession. And if it be sold on credit, and the buyer by the terms of the bargain has the right of immediate possession without payment, but the thing sold actually remains in the possession of the seller until the credit has expired, and the price is still unpaid, it seems that the seller then has a lien for the price. (x) If it be sold on credit, and there is no agreement in respect to the delivery or possession of the goods, the prevailing, but not quite universal rule, gives to the purchaser at once a complete right not only of property but of possession, (y) subject only to defeasance under the law of stoppage in transitu.1
If the property passes, though not the right of possession, and the thing sold perish, the loss falls on the purchaser. (?) The vendor's lien is destroyed by a delivery of the goods, or by a delivery of a part, without intention to separate it from the rest, but *with an intention thereby to give possession of the whole. (a) If sold for cash, and the money be not paid within a reasonable time, the vendor may treat the sale as null.(b) There may, however, be a delay in the payment justified by the terms or the nature of the contract
1 Bell, Cora. 166, et seq. But for the common-law rule, see the cases cited in the next note; also Noy, Maxims, p. 88; Hinde v. Whitehouse, 7 East, 558, Lord Ellen-borough; Com. Dig. Agreement, B. 3; Tar-ling v. Baxter, 6 B. & C. 362; Sweeting v. Turner, L. R. 7 Q. B. 310; Tome v. Dubois, 6 Wall. 548; Crill v. Doyle, 53 Cal. 713; Webber v. Davis, 44 Me. 147; Bailey v. Smith, 43 N. H. 141. See Morse v. Sherman, 106 Mass. 430; Foster v. Ropes. 111 Mass. 10; Haskins v. Warren, 115 Mass. 514; Townsend v. Hargraves, 118 Mass. 325, 332; Lester v. East, 49 Ind. 588; Jenkins v. Jarrett, 70 N. C. 255; Hanauer v. Bartels, 2 Col. 514; Felton v. Fuller, 9 Foster (N. H.), 121. - See, however, Baley v. Culverwell, 2 Mood. & R. 566; Langfort v. Tiler, 1 Salk. 113
(vv) Shucardt v. Aliens, 1 Wall. 359.
(w) Bloxam v. Sanders, 4 B. & C. 948; Cornwall v. Haight, 8 Barb. 328; Bowen v. Burk, 13 Penn. St. 146 See also Dixon v. Yates, 5 B. & Ad. 313; Withers v. Lyss, 4 Camp. 237; Bush v. Davies, 2 M.
& Sel. 397; Langfort v Tiler, 1 Salk. 113. And see Foley v. Mason, 6 Md. 37, Henderson v. Lauck, 21 Penn. St. 359, Sweeney v. Owsley, 14 B. Mon. 413.
(x) New v. Swain, Dan. & L 193, Lewis v Covilland, 21 Cal. 178; Williams v. Young, 21 Cal. 227; Owens v. Weedman, 82 Ill. 409, Milliken v. War-ren, 57 Me. 46; Re Batchelder, 2 Low. 245
(y) Cartland v. Morison, 32 Me. 191; Kimbro v Hamilton, 2 Swan, 190; Hall v Robinson, 2 Comst. 293. But Magoon v. Ankeny, 11 Ill. 558, and O'Keefe v Kellogg, 15 Ill. 347, may be considered as denying, or at least as qualifying this rule.
(z) Tarling v. Baxter, 6 B. & C. 362; Goddard v. Binney, 115 Mass. 450; Smith v. Dallas, 35 Ind 255; Whitcomb v. Whitney, 24 Mich. 486; Powers v. Dellinger, 54 Wis. 389. See also Willis v Willis, 6 Dana, 48; Macomber v. Parker, 13 Pick. 183; Farnum v. Perry, 4 Law Rep. 276, Crawford v. Smith, 7 Dana, 61.
1 If a buyer agrees to remove the goods within a certain time, failure so to do may justify the seller in repudiating the sale. Kellam v. McKinstry, 69 N. Y. 264: Bolton v. Riddle, 35 Mich. 13. A sale is complete when the thing sold is so situated that the buyer can take it at his pleasure. Turner v. Langdon, 112 Mass. 265; Marsh v. Rouse, 44 N. Y. 643; Rattary v. Cook, 50 Ala. 352; Partridge v. Wooding, 44 Conn. 277; Sibley v. Tie, 88 Ill. 287. - K.
The property does not pass absolutely unless the sale be completed; and it is not completed until the happening of any event expressly provided for, or so long as anything remains to be done to the thing sold, to put it into a condition for sale, or to identify it, or discriminate it from other things. (c)] Thus if one buys one