The referee finds as facts: That the plaintiffs, in the month of October, 1865, sold the oxen in question to one William France for $180, with the agreement that the oxen were to remain the property of the plaintiffs until paid for; that France had never paid the plaintiffs for the oxen; that in April, 1866, said France sold and delivered the oxen to defendant, who purchased without any notice of plaintiffs' claim. The question presented by this appeal is, whether the defendant, by virtue of his purchase of the oxen from France, has acquired title thereto as against the plaintiffs. From the facts found, the defendant must be regarded as a bona fide purchaser from France. The finding of the referee as to the contract between the plaintiffs and France is a little obscure. A sale and delivery of personal property by one person to another, is incompatible with the ownership of such property continuing in the seller. A sale and delivery of personal property always, when consummated, transfers the title from the seller to the purchaser; but the referee expressly finds that the agreement was that the oxen were to remain the property of plaintiff until the $180 were paid. It is manifest that the referee did not intend to find an absolute sale and delivery. The true construction of the finding is, I think, that the plaintiffs agreed with France that when he should pay to them $180, they should sell him the oxen, and that until such payment or other termination of the contract, he should have possession, and that they deliver the oxen to him pursuant to this agreement. It is conceded, that under such an agreement. France acquired no valid title to the
oxen, and that upon his failure to pay pursuant to the contract, the plaintiffs had as against him a perfect title. But it is claimed that France, although he had no title himself, but only the right to acquire title by paying the money, nevertheless by selling to a bona fide purchaser, such purchaser acquired from him a valid title against the plaintiff. If this be so, this class of cases constitute an exception to the general rule, that a purchaser of personal property other than commercial paper acquires no better title than that of his vendor. There are some exceptions to this rule; and it is claimed by the counsel of the appellant that this is one. I can conceive no substantial principle upon which such an exception can be sustained. The possession of the contemplated purchaser gives him no better opportunity to impose upon purchasers than that of an ordinary bailee. In the latter case, it has never been claimed that any title would be acquired by a purchaser from such bailee. Possession by a vendor without title, has never been held sufficient to confer a title upon a purchaser from him. Clearly, the existence of an executory contract, by which a vendor not in possession may acquire title upon the performance of some act by him, will not enable him to confer a title upon a purchaser from him. If neither of these facts, separately considered, will enable a vendor to confer title, I am unable to see how such result can be produced by uniting them in a vendor. That is all the basis of the defendant's title. It is insisted by the counsel of the appellant that the title of the purchaser in this class of cases is established by the authorities. Wait v. Green
(36 N Y, 556), is claimed to be directly in point. The opinion of the learned judge would seem to sustain the position of the counsel; but an examination of the facts will show, I think, that the point was not necessarily involved in the decision of the case. The facts, as stated, are, that Catherine Comins sold and delivered a horse to one Billington, and took his note therefor for $100, payable in five months with interest. Directly under the note, and on the same piece of paper was a memorandum,
signed by Billington, as follows: Given for one bay horse; the said Mrs. Comins holds the said horse as her property until the above note is paid. The fair intendment from the above facts is, I think, that Mrs. Comins intended to sell and deliver the horse to Billington, and transfer the title to him, and take back from him security for the payment of the note given for the purchase price in the nature of a chattel mortgage upon the horse. It is clear that had the horse died without fault of Billington, before the payment of the note, such death would have been no defence to an action on the note. The horse was at the risk of Billington. This is a strong, if not conclusive circumstance, showing the correctness of the above construction of the facts. Not so in the case at bar. Had the oxen died without the fault of France, no action could have been sustained by the plaintiffs for the purchase money. That in no event could be recovered unless the plaintiffs were able to give France a title to the oxen, unless their ability so to do had been prevented by France. The title of the oxen in the present case was in the plaintiffs, and they were at their risk. Haggerty v. Palmer (6 Johns. Ch.) was cited by the learned judge. That was a case where goods were sold at auction in New York, to be paid for in approved indorsed notes. The goods were delivered to the purchaser without delivery of the notes. The latter assigned them to a trustee for the benefit of creditors. Held, by the chancellor that the trustee was accountable to the vendor for the goods and their proceeds. The point adjudged has no analogy to the present case. Burk v.Grimshaw (1 Ed., Ch. 140,) also cited, was a case where Burk sold Grimshaw a quantity of cotton for cash on delivery; a part was delivered without payment; Grimshaw loaded this part upon a vessel, and received a bill of lading, and transferred the bill of lading to Sands Co., from whom he received advances thereon; he afterwards failed without having paid for the cotton delivered. Held, that the delivery to Grimshaw was absolute; that the title of the cotton was thereby changed, and that Sands Co., who had made advances upon the bill of lading could hold it against the vendor. It may be remarked, that this falls within the class of cases where sales have been made for cash on delivery, and the property has been delivered without exacting payment, it has been held that the title passed by delivery, and the vendor retained a lien upon the property for the purchase money, but that such lien was not available against a bona fide
purchaser of the property. In Caldwell v. Bartlett (3d Duer, 341), the question was whether, where the owner delivered goods upon a contract of sale, intending to part with the property to a fraudulent purchaser, such owner can reclaim the goods from abona fide purchaser from the fraudulent vendor. Held that he could not. The rule acted upon in this case is sustained by numerous authorities. This rule was recognized in Beavers v.Lane (6 Duer, 232); and in the same case it was held, that where the delivery was upon condition that immediate payment should be made, the vendor, in case it was not made, could not recover the property from one who purchased from his vendor in ignorance of such condition. The latter position is identical with the principle recognized by Burk v. Grimshaw (supra.) An examination of Covill v. Hill (4 Denio), will show that the points decided give no support to the rule contended for by the appellant's counsel in this case. The same remark applies toFleeman v. McKean (25 Barb., 474), as to the questions decided, although some remarks in the opinion may seem to countenance it.
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The referee finds as facts: That the plaintiffs, in the month of October, 1865, sold the oxen in question to one William France for $180, with the agreement that the oxen were to remain the property of the plaintiffs until paid for; that France had never paid the plaintiffs for the oxen; that in April, 1866, said France sold and delivered the oxen to defendant, who purchased without any notice of plaintiffs' claim. The question presented by this appeal is, whether the defendant, by virtue of his purchase of the oxen from France, has acquired title thereto as against the plaintiffs. From the facts found, the defendant must be regarded as a bona fide purchaser from France. The finding of the referee as to the contract between the plaintiffs and France is a little obscure. A sale and delivery of personal property by one person to another, is incompatible with the ownership of such property continuing in the seller. A sale and delivery of personal property always, when consummated, transfers the title from the seller to the purchaser; but the referee expressly finds that the agreement was that the oxen were to remain the property of plaintiff until the $180 were paid. It is manifest that the referee did not intend to find an absolute sale and delivery. The true construction of the finding is, I think, that the plaintiffs agreed with France that when he should pay to them $180, they should sell him the oxen, and that until such payment or other termination of the contract, he should have possession, and that they deliver the oxen to him pursuant to this agreement. It is conceded, that under such an agreement. France acquired no valid title to the
oxen, and that upon his failure to pay pursuant to the contract, the plaintiffs had as against him a perfect title. But it is claimed that France, although he had no title himself, but only the right to acquire title by paying the money, nevertheless by selling to a bona fide purchaser, such purchaser acquired from him a valid title against the plaintiff. If this be so, this class of cases constitute an exception to the general rule, that a purchaser of personal property other than commercial paper acquires no better title than that of his vendor. There are some exceptions to this rule; and it is claimed by the counsel of the appellant that this is one. I can conceive no substantial principle upon which such an exception can be sustained. The possession of the contemplated purchaser gives him no better opportunity to impose upon purchasers than that of an ordinary bailee. In the latter case, it has never been claimed that any title would be acquired by a purchaser from such bailee. Possession by a vendor without title, has never been held sufficient to confer a title upon a purchaser from him. Clearly, the existence of an executory contract, by which a vendor not in possession may acquire title upon the performance of some act by him, will not enable him to confer a title upon a purchaser from him. If neither of these facts, separately considered, will enable a vendor to confer title, I am unable to see how such result can be produced by uniting them in a vendor. That is all the basis of the defendant's title. It is insisted by the counsel of the appellant that the title of the purchaser in this class of cases is established by the authorities. Wait v. Green
(36 N Y, 556), is claimed to be directly in point. The opinion of the learned judge would seem to sustain the position of the counsel; but an examination of the facts will show, I think, that the point was not necessarily involved in the decision of the case. The facts, as stated, are, that Catherine Comins sold and delivered a horse to one Billington, and took his note therefor for $100, payable in five months with interest. Directly under the note, and on the same piece of paper was a memorandum,
signed by Billington, as follows: Given for one bay horse; the said Mrs. Comins holds the said horse as her property until the above note is paid. The fair intendment from the above facts is, I think, that Mrs. Comins intended to sell and deliver the horse to Billington, and transfer the title to him, and take back from him security for the payment of the note given for the purchase price in the nature of a chattel mortgage upon the horse. It is clear that had the horse died without fault of Billington, before the payment of the note, such death would have been no defence to an action on the note. The horse was at the risk of Billington. This is a strong, if not conclusive circumstance, showing the correctness of the above construction of the facts. Not so in the case at bar. Had the oxen died without the fault of France, no action could have been sustained by the plaintiffs for the purchase money. That in no event could be recovered unless the plaintiffs were able to give France a title to the oxen, unless their ability so to do had been prevented by France. The title of the oxen in the present case was in the plaintiffs, and they were at their risk. Haggerty v. Palmer (6 Johns. Ch.) was cited by the learned judge. That was a case where goods were sold at auction in New York, to be paid for in approved indorsed notes. The goods were delivered to the purchaser without delivery of the notes. The latter assigned them to a trustee for the benefit of creditors. Held, by the chancellor that the trustee was accountable to the vendor for the goods and their proceeds. The point adjudged has no analogy to the present case. Burk v.Grimshaw (1 Ed., Ch. 140,) also cited, was a case where Burk sold Grimshaw a quantity of cotton for cash on delivery; a part was delivered without payment; Grimshaw loaded this part upon a vessel, and received a bill of lading, and transferred the bill of lading to Sands Co., from whom he received advances thereon; he afterwards failed without having paid for the cotton delivered. Held, that the delivery to Grimshaw was absolute; that the title of the cotton was thereby changed, and that Sands Co., who had made advances upon the bill of lading could hold it against the vendor. It may be remarked, that this falls within the class of cases where sales have been made for cash on delivery, and the property has been delivered without exacting payment, it has been held that the title passed by delivery, and the vendor retained a lien upon the property for the purchase money, but that such lien was not available against a bona fide
purchaser of the property. In Caldwell v. Bartlett (3d Duer, 341), the question was whether, where the owner delivered goods upon a contract of sale, intending to part with the property to a fraudulent purchaser, such owner can reclaim the goods from abona fide purchaser from the fraudulent vendor. Held that he could not. The rule acted upon in this case is sustained by numerous authorities. This rule was recognized in Beavers v.Lane (6 Duer, 232); and in the same case it was held, that where the delivery was upon condition that immediate payment should be made, the vendor, in case it was not made, could not recover the property from one who purchased from his vendor in ignorance of such condition. The latter position is identical with the principle recognized by Burk v. Grimshaw (supra.) An examination of Covill v. Hill (4 Denio), will show that the points decided give no support to the rule contended for by the appellant's counsel in this case. The same remark applies toFleeman v. McKean (25 Barb., 474), as to the questions decided, although some remarks in the opinion may seem to countenance it. The case principally relied on, is that ofSmith v. Lynes (1 Selden, 41). All that was determined by this case, was, that where the sale is upon condition that the goods should be paid for on delivery, and they are delivered without payment being made, a bona fide purchaser from the vendee acquires a title, discharged of the lien for the purchase money. Crocker v. Crocker (31 N.Y., 507) holds that, where the legal title to corporate stock was in the hands of one charged with a trust in behalf of another, a purchaser from the trustee, ignorant of the trust, acquires a good title. Keeler
v. Field (1 Paige, 312) involved only the question,
whether a vendor who was to receive payment upon delivery, but who had delivered the goods without payment, could enforce his lien against one who had received the goods from the vendor as security for an antecedent debt. Held that he could. The question in the Western Transportation Co. v. Marshall (37 Barb.) appealed in this court, was whether a vendor for cash on delivery, who had made delivery without payment, and who had permitted the vendor to load the goods upon a vessel and receive a bill of lading therefor, could recover the goods from the owner of the vessel, or the holder of the bill of lading, who had made advances thereon to the purchaser. It was held that he could not. It will be seen that in no one of the cases referred to in Wait
v. Green, has it been determined, that one to whom property has been delivered without any intention to transfer the title, upon a contract for a sale in future, upon payment being made of a certain sum, and that in the mean time the contemplated purchaser shall enjoy the use of the property, can confer a good title to a purchaser from him. In Herring v. Hoppock (15 N.Y., 409), it was determined by this court, that one who has bargained for the purchase of a chattel, and agreed to pay therefor at a future day, and has received a delivery under an agreement that no title should vest in him until payment, acquired no title; and that a creditor of such person, who had levied an execution thereon, was liable to the owner for the conversion of the chattel. This would be decisive of the present case, unless it be held that chattels so delivered are to be placed upon the same ground as commercial paper in respect to purchasers. A like doctrine was held by the Supreme Court of Vermont, in Bigelow v. Huntley (8 Vermont, 151). This precise question was determined by the Supreme Court of Massachusetts in Sargeant v. Metcalf (5 Gray., 506), where it was held that the purchaser acquired no title. The same rule was held by the Supreme Court of Connecticut, in Hart v.Carpenter (24th Conn., 427). My conclusion, both upon principle and authority is, that the purchaser from France acquired no title,
and that the judgment of the Supreme Court affirming that of the referee should be affirmed.