§ 1104. Where the vendor has acquired possession of property wrongfully, and without the knowledge, connivance, or assent of the owner, as where he has stolen or found them, or holds them merely as bailee, with no express or implied authority to sell, the original owner may reclaim them from the hands of a subsequent bond fide purchaser for a valuable consideration.5 The reason of this rule is that until the
1 Halsey v. Grant, 13 Ves. 78; Stapylton v. Scott, 13 Ves. 426; Milli-gan v. Cooke, 16 Ves. 1; King v. Bardeau, 6 Johns. Ch. 38; Smith v. Tolcher, 4 Russ. 305; Pringle v. Witten, 1 Bay, 256; Glover v. Smith, 1 Desauss. 433; Tunno v. Fludd, 1 McCord, 121; Stoddart v. Smith, 5 Binn. 355. There is much diversity in regard to this rule among the different cases, and there is no positive and settled rule upon the subject; but the doctrine, as stated in the text, seems to be the sound and equitable doctrine, and the better founded in authority, as well as in good sense. See 2 Kent, Comm. lect. 39, p.475, 476. See ante, Mistake, § 533, 984.
2 Hodgeden v. Hubbard, 18 Vt. 504; Johnson v. Peck, 1 Wood. & Min. 334.
3 Johnson v. Peck, 1 Wood. &Min. 334; Hoffman v. Noble, 6 Met. 74. See ante, § 10S8, 1089.
4 Nellis v. Bradley, 1 Sandf. 560.
5 Williams v. Merle, 11 Wend. 80; Everett v. Coffin, 6 Wend. 609; Kinder v. Shaw, 2 Mass. 398; Hartop v. Hoare, 1 Wils. 8; 2 Str. 1187; original owner has expressly or impliedly agreed to part with his rights of property, or has done some act which operates to deceive the vendee into a belief that the vendor has a right to sell, the wrongful act of a third party, without the fault of the owner, ought not to divest from him his property.
§ 1105. But where he has voluntarily parted with his property in goods, and given a title therein to the vendee, he cannot reclaim them from a third party, who has become a purchaser from such vendee, for a valuable consideration, without notice, on the ground of fraud by his own vendee; for although fraud renders the contract voidable, at the instance of the party deceived, it does not render it absolutely void.1 And, therefore, as the original owner has voluntarily parted with the goods, and given to his vendee a title which is good until it is avoided, it is through his own act that the vendee is enabled to resell, and a bond fide purchaser, without knowledge of the circumstances, ought not, therefore, to suffer. If, indeed, the second sale be without consideration, or if the third party purchase with knowledge of the fraud, the original owner may reclaim the goods or their proceeds from him.2
§ 1106. So, also, if the owner place his property in the hands of another person, under such circumstances or in such a manner that the law implies a right and power on the part of that person to make a valid sale, a sale by him will be good, although he be not authorized by the owner to sell. Thus, if a principal hold out an agent as having authority to sell for him, and the agent sell to a bond fide purchaser in violation of his private instructions, the sale is binding against the principal.1
Wheelwright v. Depeyster, 1 Johns. 471; Dame v. Baldwin, 8 Mass. 519; Towne v. Collins, 14 Mass. 500; Mowrey v. Walsh, 8 Cow. 238; Chism v. Woods, Hardin, 531; Heacock v. Walker, 1 Tyler, 338; Adamson v. Jarvis, 4 Bing. 66.
1 Rowley v. Bigelow, 12 Pick. 307; Ash v. Putnam, 1 Hill, 306; Kings-ford v. Merry, 34 Eng. Law & Eq. 607; 1 H. & N. 503; White v. Garden, 10 C. B. 919; 5 Eng. Law & Eq. 379; Trott v. Warren, 11 Me. 227; Hoffman v. Noble, 6 Met. 68; George v. Kimball, 24 Pick. 241; Irving v. Motly, 7 Bing. 543; 5 M. & P. 380; Barnes v. Bartlett, 15 Pick. 71; Pickering v. Busk, 15 East, 38; Fenn v. Harrison, 3 T. R. 760; Lynch v. Beecher, 38 Conn. 490 (1871); Story on Agency, § 73, and note (3), § 126, 127, 452. See Story on Sales, § 200, 201, 202. And the samo rule applies to sales of real estate. Somes v. Brewer, 2 Pick. 184.
2 Lloyd v. Brewster, 4 Paige, Ch. 537.
1 Ante, § 209 to § 214.