Whitfield, O; J.,
delivered the opinion of the court
The appellant sold to one Kirby certain machinery and took installment notes for the purchase price, in which this clause occurs: “The express condition of the sale and purchase of said machinery for which this note is given is such that the title, ownership, or possession does not pass from said Corinth Engine & Boiler Works until this note, with interest, is paid in full.” In other words, the notes reserved the title, ownership', and possession until payment in full. The case was submitted to the judge upon an agreed statement of facts, after certain pre[823]*823liminary proceedings had been had. That agreed statement of facts is as follows:
“The Corinth Engine & Boiler Works, a Mississippi corporation, with its principal office in Corinth, in said state, sold in May, 1906, a car load of machinery to one E. O. Kirby, and said Corinth Engine & Boiler Works shipped said machinery, consisting of one engine and boiler and sawmill outfit, to said E. O. Kirby, at Hattiesburg, Miss. The Corinth Engine & Boiler "Works took from said Kirby a contract of sale, signed b;y the vendee, and in said contract retained title and ownership in and to all of said outfit until all of the notes given by Kirby for said machinery should be paid in full; the notes amounting in all to the sum of $1,250. In November, 1907, one J. N. Kirby delivered said car load of machinery to the Mississippi Central Railroad Company, defendant in this suit, for shipment from Eple'v, Miss., to White Sand, Miss.; the same being consigned to J. N. Kirby. That said shipment was made before all of said notes had been paid by said E. O. Kirby (Kirby had paid about $300.00), and without plaintiff’s knowledge or consent, and while plaintiff still held, in accordance with its contract of sale, the title. The Mississippi Central Railroad Company shipped the machinery from Epley to White Sand, and, the consignee, J. N. Kirby, failing to call for same, the railroad company held the machinery for freight and demurrage until it was turned over to Corinth Engine & Boiler Works, plaintiff herein, in accordance with their bond filed in this the present suit. At the time the Mississippi Central Railroad Company received the machinery for shipment, it did not know of plaintiff’s title claim, and received the freight from one lawfully in possession thereof, and offered to surrender the same upon payment of freight and demurrage charges. The sole question to be decided being whether plaintiff can recover in this suit without paying freight and demurrage charges due the defendant. -Teff Truly, Attorney for Defendant. Conn & Warriner, Attorneys for the Plaintiff.”
[824]*824The principle which must control this case is well settled, and is thus expressed in 2 Hutchinson on Carriers (3d ed.) § 884: “In this country the law upon the question does not seem to be so well settled. But few case's have occurred, it seems, in regard to the right of innkeepers, under such circumstances, to retain the property of another, brought to the inn by a guest. Whenever the subject has been referred to, it has been conceded that the lien in favor of the innkeeper attaches to the goods, even when not owned by the guest. But it has been held in several cases that a carrier acquires no right, by virtue of his employment as such, to hold the goods delivered to him by a wrongdoer, to whom they do not belong, until his charges are paid, against the claim of the true owner, and that he therefore has no lien upon them, but must, on demand, surrender them to the owner. This rule is based upon the universally recognized principle that no person’s property can be taken from him without his consent, expressed or implied. It is not a harsh rule, as applied to common carriers, since they always have the right to demand of the consignor their transportation charges in advance; and the rights of a connecting road are no better in this respect than those of the initial carrier.”
In the case of Robinson v. Baker, 59 Mass. 137, 51 Am. Dec. 54, the court said: “Thus the case stands upon direct and express authorities. How does it stand upon general principles ? In the case of Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541, it is said: “The universal and fundamental principle of our law of personal property is that no man can be divested of his property without his consent, and consequently that even the honest purchaser under a defective title cannot hold against the true proprietor.’ There is no case to be found, or any reason or analogy anywhere suggested, in the books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has [825]*825•only a temporary right to its use, by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in possession of any person, however innocent. Upon this settled and universal principle that no man’s property can be taken from him without his consent, express or impliéd, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of •others, apparently the owners, and often with strong evidence of ownership, but who 'yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants upon pledge of goods by persons apparently having the right to pledge, but who in fact had not any such right, and the pledgors have been subject to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle that a man’s property cannot be taken from him without his consent. Why should the carrier be exempt from the operation of'this universal principle? Why should not the principle of caveat emptor apply to him ? The reason, and the only reason, given is that he is obliged to receive goods to carry, and should therefore have the right to detain the goods for his pay. But he is not bound to receive goods from a wrongdoer. He is bound only to receive goods from one who may-rightfully deliver them to him, and he can look to the title as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods unless- the freight or pay for the carriage is first paid to him; and he may in all cases secure the payment of the carriage in advance.”
The case relied upon by the learned counsel for appellees, Vaughn v. Providence & Worcester Railroad Company, 13 R. I. 578, cited in note 72 to Hutchinson on Carriers, § 885, is not [826]*826in point on the facts of this case. That case is noted in the note to Savannah, etc., Railroad Company v. Talbot, 3 Am. & Eng. Ann. Cas. 1092, as appearing to be an exception to the general rule.
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Whitfield, O; J.,
delivered the opinion of the court
The appellant sold to one Kirby certain machinery and took installment notes for the purchase price, in which this clause occurs: “The express condition of the sale and purchase of said machinery for which this note is given is such that the title, ownership, or possession does not pass from said Corinth Engine & Boiler Works until this note, with interest, is paid in full.” In other words, the notes reserved the title, ownership', and possession until payment in full. The case was submitted to the judge upon an agreed statement of facts, after certain pre[823]*823liminary proceedings had been had. That agreed statement of facts is as follows:
“The Corinth Engine & Boiler Works, a Mississippi corporation, with its principal office in Corinth, in said state, sold in May, 1906, a car load of machinery to one E. O. Kirby, and said Corinth Engine & Boiler Works shipped said machinery, consisting of one engine and boiler and sawmill outfit, to said E. O. Kirby, at Hattiesburg, Miss. The Corinth Engine & Boiler "Works took from said Kirby a contract of sale, signed b;y the vendee, and in said contract retained title and ownership in and to all of said outfit until all of the notes given by Kirby for said machinery should be paid in full; the notes amounting in all to the sum of $1,250. In November, 1907, one J. N. Kirby delivered said car load of machinery to the Mississippi Central Railroad Company, defendant in this suit, for shipment from Eple'v, Miss., to White Sand, Miss.; the same being consigned to J. N. Kirby. That said shipment was made before all of said notes had been paid by said E. O. Kirby (Kirby had paid about $300.00), and without plaintiff’s knowledge or consent, and while plaintiff still held, in accordance with its contract of sale, the title. The Mississippi Central Railroad Company shipped the machinery from Epley to White Sand, and, the consignee, J. N. Kirby, failing to call for same, the railroad company held the machinery for freight and demurrage until it was turned over to Corinth Engine & Boiler Works, plaintiff herein, in accordance with their bond filed in this the present suit. At the time the Mississippi Central Railroad Company received the machinery for shipment, it did not know of plaintiff’s title claim, and received the freight from one lawfully in possession thereof, and offered to surrender the same upon payment of freight and demurrage charges. The sole question to be decided being whether plaintiff can recover in this suit without paying freight and demurrage charges due the defendant. -Teff Truly, Attorney for Defendant. Conn & Warriner, Attorneys for the Plaintiff.”
[824]*824The principle which must control this case is well settled, and is thus expressed in 2 Hutchinson on Carriers (3d ed.) § 884: “In this country the law upon the question does not seem to be so well settled. But few case's have occurred, it seems, in regard to the right of innkeepers, under such circumstances, to retain the property of another, brought to the inn by a guest. Whenever the subject has been referred to, it has been conceded that the lien in favor of the innkeeper attaches to the goods, even when not owned by the guest. But it has been held in several cases that a carrier acquires no right, by virtue of his employment as such, to hold the goods delivered to him by a wrongdoer, to whom they do not belong, until his charges are paid, against the claim of the true owner, and that he therefore has no lien upon them, but must, on demand, surrender them to the owner. This rule is based upon the universally recognized principle that no person’s property can be taken from him without his consent, expressed or implied. It is not a harsh rule, as applied to common carriers, since they always have the right to demand of the consignor their transportation charges in advance; and the rights of a connecting road are no better in this respect than those of the initial carrier.”
In the case of Robinson v. Baker, 59 Mass. 137, 51 Am. Dec. 54, the court said: “Thus the case stands upon direct and express authorities. How does it stand upon general principles ? In the case of Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541, it is said: “The universal and fundamental principle of our law of personal property is that no man can be divested of his property without his consent, and consequently that even the honest purchaser under a defective title cannot hold against the true proprietor.’ There is no case to be found, or any reason or analogy anywhere suggested, in the books, which would go to show that the real owner was concluded by a bill of lading not given by himself, but by some third person, erroneously or fraudulently. If the owner loses his property, or is robbed of it, or it is sold or pledged without his consent, by one who has [825]*825•only a temporary right to its use, by hiring or otherwise, or a qualified possession of it for a specific purpose, as for transportation, or for work to be done upon it, the owner can follow and reclaim it in possession of any person, however innocent. Upon this settled and universal principle that no man’s property can be taken from him without his consent, express or impliéd, the books are full of cases, many of them hard and distressing cases, where honest and innocent persons have purchased goods of •others, apparently the owners, and often with strong evidence of ownership, but who 'yet were not the owners, and the purchasers have been obliged to surrender the goods to the true owners, though wholly without remedy for the money paid. There are other hard and distressing cases of advances made honestly and fairly by auctioneers and commission merchants upon pledge of goods by persons apparently having the right to pledge, but who in fact had not any such right, and the pledgors have been subject to the loss of them by the claim of the rightful owner. These are hazards to which persons in business are continually exposed by the operation of this universal principle that a man’s property cannot be taken from him without his consent. Why should the carrier be exempt from the operation of'this universal principle? Why should not the principle of caveat emptor apply to him ? The reason, and the only reason, given is that he is obliged to receive goods to carry, and should therefore have the right to detain the goods for his pay. But he is not bound to receive goods from a wrongdoer. He is bound only to receive goods from one who may-rightfully deliver them to him, and he can look to the title as well as persons in other pursuits and situations in life. Nor is a carrier bound to receive goods unless- the freight or pay for the carriage is first paid to him; and he may in all cases secure the payment of the carriage in advance.”
The case relied upon by the learned counsel for appellees, Vaughn v. Providence & Worcester Railroad Company, 13 R. I. 578, cited in note 72 to Hutchinson on Carriers, § 885, is not [826]*826in point on the facts of this case. That case is noted in the note to Savannah, etc., Railroad Company v. Talbot, 3 Am. & Eng. Ann. Cas. 1092, as appearing to be an exception to the general rule. The editor of that note says at the close of the note: “This case appears to be an exception to the general rule; but the decision was arrived at in view of the peculiar facts of the case, as the court recognized the rule under consideration.” The editor further says: “The mistake was that of the initial carrier, who was the agent of the consignee.” It seems to us very clear that the Vaughn case was properly" decided on its facts, and it was so decided, as we read the case, because the owner himself, living at Providence, directed the last carrier, the Providence & Worcester Railroad Company, which had paid to the Chicopee Railroad Company its charges, to bring the freight, the cotton, from Chicopee, Mass., to Providence, R. I.; and yet when the Providence & Worcester Railroad Company had so transported the cotton' from Chicopee to Providence, the said owner, who had himself directed the transportation to Providence, refused to pay the Providence & Worcester Railroad Company its charges. The court said in the conclusion of its opinion, at the bottom of 13 R. I. 581: “The cotton arrives at Chicopee, the place of its destination by the bill of lading which accompanied it. The owner is informed of it, as directed by the bill of lading. No person but the owner had any authority to send it further. But for the owner’s direction the Chicopee Railroad Company must have held it/ They knew of no other destination. They had noticé by the bill of lading that the owner had given no authority to send it to any other place. . . . They did as directed by the bill of lading— notified the owner and awaited his orders.” In other words, the court held very properly that the owner was bound to pay the Providence & Worcester Railroad Company for its charges from Chicopee to Providence for the very sufficient reason that he himself had directed the Providence Railroad Company to transport the cotton to Providence. That case has no sort of application here.
[827]*827In the ease of Savannah, etc., R. R. Co. v. Talbot, just referred to, the court says, at page 1094: “The liability iu such-case is on the principle that the true owner of personal property has the right to the, possession of his property, which has been fraudulently taken from him, even though it be found in the possession of an innocent purchaser; and in such cases the true owner is not liable for any expenses to which the person in possession may have been put, either in the purchase of the property or otherwise.” In the note to this case the following is quoted from Fitch v. Newberry, 1 Doug. (Mich.) 14: “No one can-transfer to another a better title than he has himself, or a greater interest in personal property than he, or the person for whom-he acts, possesses. . . . To create a lien it is necessary that the party vesting it should have the power to do so. A person-can neither acquire a lien by his own wrongful act, nor can he retain one, when he obtains possession of goods without the consent of the owner, express or implied.” In the case of Owen v. Burlington, etc., R. R. Co., 11 S. D. 153, 76 N. W. 302, 74 Am. St. Rep. 786, the court say:.“Knowledge of snch proposed shipment, and the fact that respondents allowed the mortgagors tore-main in possession, and to move the property from place to place for use within the state, is not equivalent to consent upon their part that the lien of appellant should be paramount to this mortgage, and there is nothing in the record amounting to a waiver of their rights thereunder. By waiving its statutory right to demand and receive its charges in advance of the shipment, appellant exposed itself to the risk here encountered, and its lien cannot be regarded superior to the mortgage without violating the fundamental principle that no man can be divested of his personal property without his consent, express or implied. If the rule were as contended for by appellant, a chattel mortgage would afford but scanty security, and the common carrier would be, without an obvious distinction upon principle, relieved from a hazard to- which other persons in business are constantly subjected. The doctrine upon which this decision must rest was fully recognized and applied in Wright v. Sher[828]*828man, 3 S. D. 290, 52 N. W. 1093, 17 L. R. A. 792, a case which, is amply supported by well-reasoned ancient and modern authority.” To the same effect are .the following authorities: Sargent v. Usher, 55 N. H. 287, 20 Am. Rep. 208, Gilson v. Gwinn, 107 Mass. 126, 9 Am. Rep. 13, and many others which need not be cited.
This is merely one of many other cases which, in our judgment, show the necessity for requiring all reservations of titles to personal property to be recorded. We trust that the legislature will pass such a law speedily.
The result is that the judgment of the court below is reversed, and a judgment will be entered here for the appellant.
Reversed.