70Wheelden v. Lowell, 60 Me. 409. See also Smith v. Hale, 158 Mass. 178, 33 N. E. 403, 35 Am. St. Rep. 485, where on the assertion by the buyer of a warranted buggy of a right of rescission for breach of warranty, he was held entitled to take without breach of the peace from the seller's land property given by the buyer as the price of the buggy.
71 Buzard v. Houston, 110 U. S. 347, 90 L. Ed. 451, 7 S. C. Rap. 240; Walter v. Garland Automobile Co., 164 N. Y. App; D. 183, 140 N. Y. 8. 653.
72 Save in exceptional cases. See 21 L. R. A. 206, note, and 1L.R.A. (N. S.) 474.
73 Barnett v. Speir, 03 Ga. 762, 21 S. E. 168; Porter v. Leyhe, 67 Mo. App. 540. See also Milliken v. Skil-lings, 80 Me. 180, 36 Atl. 77.
74 In Nolan v. Jones, 63 Iowa, 387, 5 N. W. 572, one party to an exchange, induced by fraud, was allowed replevin to recover his goods. The court said that because of the fraud the transaction was "void," but also said the plaintiff might have "affirmed" it. To the same effect is Porter v. Leyhe, 67 Mo. App. 540. Compare Barnett v. Speir, 03 Ga. 762,21 S. E. 168; Haase v. Mitchell, 58 Ind. 213, also cases of exchange.
for other reasons than for fraud - as mistake, duress, infancy, or insanity.75 So if an infant pleads his infancy in order to prevent recovery of the price of goods, the seller may replevy the goods.76 This necessarily means that the seller by his own election enforces specifically the obligation of the infant to return the goods which he will not pay for. To say that the infant's plea is an assent to retransfer the goods is to state a fiction. It is immaterial whether the infant assents or expressly dissents.
The remedies allowed to an unpaid seller after the property has passed to the buyer, other than the right to recover the price, illustrate the same principle. A seller with a lien may by his own act take title out of the buyer and revest it either in himself or in a third person to whom a resale of the goods is made. The English law formerly denied this,77 but the Sale of Goods Act now allows at least the right of resale,78 and the right of resale necessarily involves a transfer of title without the assent of the owner of the property. It does not help the matter to imply a fictitious agency calling the seller the agent of the buyer to resell. In this country the seller's right, not simply to resell the goods, but to rescind the transfer of title and take it himself, is well recognized.79 The seller in thus acting is foreclosing his hen. When he chooses to resell on account of the buyer it is a foreclosure by sale. When he elects to retake title to himself it is a strict foreclosure. In the case of land a bill in equity might be necessary. In the case of goods the result is reached more summarily.