Heath v. Randall

58 Mass. 195

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1849
• Status: Published

Opinion

Shaw, C. J.

We think the direction of the court below was right. The sale of the oxen was a conditional one, and the condition was precedent, so that no property passed by such sale to the vendee, until performance. It seems that such a conditional sale, though accompanied with an actual delivery for a special purpose, will not vest the property, so that it may be attached by a creditor of the vendee. Barrett v. Pritchard, 2 Pick. 512; Reed v. Upton, 10 Pick. 522. But however that may be, the court are of opinion, that such a condition is valid, as between the parties, and no right can be set up by the vendee against the vendor. Then the delivery of the oxen to the plaintiff was made in pursuance of an agreement, that, until paid for, the defendant should have a right to take them away at any time ; indeed, in the absence of any agreement to the contrary, the defendant would have had that right, under the maxim, that the right of possession follows the right of property. The plaintiff, recognizing this right, and putting the oxen into his own close, thereby gave the defendant an implied and irrevocable license to enter such close, in order to take them. Wood v. Manley, 11 Ad. & El. 34.

The entry of the defendant, therefore, into the plaintiff’s premises, under such implied license, was no breach of his close, and no trespass. Exceptions overruled.