While, as between the parties, the property passes by a sale without delivery, if such is the intention, (kl) it is not valid, in general, as against a third party without notice, without delivery. For if the same thing be sold by the vendor to two parties, by conveyances equally valid, he who first gets possession will hold it. (l)l In general; where there is a completed sale, and no change of possession, this retention of possession by the vendor is a badge of fraud, and will avoid the sale in favor of a party who subsequently acquires title to the property in good faith, either by transfer or by attachment, and with no knowledge of the sale. In the days of Mansfield and Butter, possession retained by the seller or mortgagor of chattels gave rise to an inference of law of fraud. This severe doctrine has certainly been held in many cases down to the present day, both in England and in this country. But the rule has been much modified * in other cases. And there seems now to be a tendency to consider the question of fraud in all such cases as a question of fact, in relation to which the circumstance of possession is of great weight, though not absolutely conclusive. The question is thus taken from the court who should infer it from a single fact, and is left to the jury, who may consider all the facts, and determine how far the fact of possession is explained, and made consistent with an honest purpose.1 And it is said that where the contract
(k) This whole subject is well illustrated in Bell's Commentaries on the Law of Scotland.
(kk) Gleason v. Sykes, 18 La. Ann. 627.
(kl) Burt v Dutcher, 34 N. Y. 493; Buffinton v. Ulen, 7 Bush, 231.
(/) 2 Kent, Com. 522; Dawes v. Cope, 4 Binn. 258; Babb v. Clemson, 10 S. & R. 419; Fletcher v. Howard, 2 Aik. 115; Bay v. Cook, 31 Ill. 336; Cullam v. Guil-lot, 18 La. Ann. 608.
Dugan v. Nichols, 125 Mass. 43; Hurd v. Cook, 75 N. Y. 454; Dyer v. Libby, 61 Me. 45; Lester v. East, 49 Ind. 588; Wilkinson v. Holiday, 33 Mich. 386; Ogg v. Shuter, L. R. 10 C. P. 159, 162. And such intention must be manifest when the bargain is made. Foster v. Ropes, 111 Mass. 10; Lingham v. Eggleston, 27 Mich. 324. - K.
1 In a few States of this country it is held that apart from any question of fraud a sale does not pass title to the purchaser without delivery as against a subsequent purchaser or attaching creditor ignorant of the sale. Fairfield Bridge Co. v. Nye, 60 Me 372; Reed v. Reed, 70 Me. 504; Lanfear v. Sumner, 17 Mass. 110; Shumway v. Rutter, 7 Pick. 56; Dempsey v. Gardner, 127 Mass. 381; Harlow v. Hall, 132 Mass.
232; Hallgarten v. Oldham, 135 Mass. 1, 8; Crawford v. Forristall, 58 N. H. 114; Morgan v. Taylor, 32 Tex. 363. But of these States, in New Hampshire, at least, delivery is not essential if the goods sold are at a distance so that delivery is impossible. Ricker v. Cross, 5 N. H. 570.
In England, and in other States of this country, the only importance of non-delivery is as evidence of fraud. If no fraud is charged or made out, a purchaser without delivery may enforce his title against a subsequent purchaser or attaching creditor who obtains possession. Blackburn on Sales, 260; Meyerstein v. Barber, L. K. 2 C. P. 38, 51; Meade v. Smith, 16 Conn. 346.
It should be noticed, however, that in many States retention of possession by the vendor is held to be not only prima facie evidence of fraud but conclusive proof, So that on the ground of fraud the subsequent purchaser or attaching creditor obtaining possession may enforce his right against the prior purchaser. But this doctrine also is contrary to the English law and the weight of authority in this country. See the following note.
1 In the following cases it was held that retention of possession by the vendor is conclusive proof of fraud. Twyne's Case, 3 Rep. 87; Edwards v. Harben, 2 T. R. 587; Paget v. Perchard, 1 Esp. 205; Grun v. Barney, 55 Cal. 254; Kelly v. Murphy, 70 Cal. 560; Bassinger v. Spangler, 9 Col. 175; Finding v. Hartman, 14 Col. 596; Mead v. Noyes, 44 Conn. 487; Taylor v. Richardson, 4 Houst. 300; Smith v. Hines, 10 Fla. 258, 295: Dunning v. Mead, 90 111.376; Huschle v. Morris, 131 Ill. 587; Hickok v. Buell, 51 Ia. 655, Seavey v. Walker, 108 Ind. 78; Vanmeter v. Estill, 7s Ky. 456; Bruce v. Smith, 3 H. & J. 499; Stern v. Henley, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367; Gray v. Sullivan, 10 New 416; Plaisted v Holmes, 58 N. H. 293; Crawford v. Davis, 99 Pa. 576; Stephens v. Gifford, 137 Pa. 219; Roth-child v. Rowe, 44 Vt. 389; Bowen v. Amsden, 47 Vt. 569.
But the doctrine supported by the later English decisions and perhaps by the weight of authority in this country, is that such retention of possession, though evidence of fraud, is not conclusive. Latimer v. Batson, 4 B. & C. 652; Martindale v. Booth, 3 B. & Ad. 498; Lady Arundel v. Phipps, 10 Vesey, 145; Pennell v. Davidson, 18 C. B. 355; Warner v. Norton, 20 How. 448 , Crawford v. Kirksey, 50 Ala. 590; 55 Ala. 282, 285; George v. Norris, 23 Ark. 121; Collins v. Taggart, 57 Ga. 355; Rose v. Colter, 76 Ind. 590; (now changed by statute, Seavev v. Waller. 108 Ind. 78); Frankhouser v. Ellett, 22 Kan. 127; Whitson v. Griffis, 39 Kan. 211 . Devonshire v Gathreaux, 32 La. An. 1132; Wagar v. Detroit,etc. R. R. Co., 79 Mich. 648; Vose v. Stickney, 19 Minn. 367; Lathrop v, Clayton, 45 Minn. 124; Ketchum v. Brennan, 53 Miss. 596; Miller v. Morgan, 11 Neb 121; Parr v. Brady, 37 N. J. L. 201 , Stanley v. Nat. Union Bank, 115 N. Y. 122; Boone v. Hardie, 83 N. C. 470; Collins v. Meyers, is bond fide and otherwise completed, slight acts suffice to prove a delivery as against the claims of third parties. (mm) It is held in California, that where cattle roaming with those of other owners were sold, the purchaser will not be affected by want of delivery, until he has had a reasonable time for selecting and branding them. (mn) Goods are fraudulently purchased, if the buyer intends not to pay for them, and the seller may recover possession of them from the purchaser or one who buys from him with knowledge of the fraud. (mo) If one resists the payment of the price on the ground of fraud in the seller, he must prove not only that the seller made false statements, but that he knew them to be false. (mp) If a vendor proceeds to judgment for the price after knowing the fraud, he loses his right to retake the goods. (mq) But a mere demand of payment does not defeat the vendor's right. (mr)