
    Calvin Hooben v. Riverius Bidwell.
    Delivery, under a contract of sale, is not essential to pass tbe title to personal property.
    This is a writ of error, directed to the court of common pleas of Sandusky county.
    The original action was replevin, commenced March 11, 1844, in the common pleas of Sandusky county, and afterward appealed to the Supremo Court.
    Upon the trial of the cause before the Supreme Court, the following facts appeared, to wit, that on August 18, 1843, Seth Barker bought a wagon of Charles Rice, for the sum of seventy-five dollars, payable by the 1st of March following, and on the same day gave his note for the amount to Rico, with the plaintiff, Hooben, as surety; that Barker at the same time executed to plaintiff, a mortgage of the wagon and a yoke of oxen, an ox-yoke and irons; that the property remained in the possession of Barker till a few days before the replevin was commenced, when Barker wont to Lower Sandusky with the projierty, and sold if to one Harman, who, on the same day, sold it to Bidwell, the defendant, in whose possession it remained until replevied. ‘There was no evidence tending to prove that Barker, the mortgagor, actually delivered the property to the plaintiff. On the trial, the court charged the jury that if they were not satisfied from the evidence that there was a delivery of the' property by Barker to the plaintiff, prior to the sale and deliver}* by Barker to Harman, the vendor of the defendant, then no title passed to the plaintiff, and the defendant would be entitled to recover.
    To this charge the plaintiff excepted, and the question raised is as to the correctness of this charge.
    E. Lane and John Wheeler, for plaintiff in error.
    R. T. Buckland, for defendant.
   Avery, J.

In this case no question concerning actual fraud or fraudulent conveyance, is presented for our determination.

On the trial before the jury, the court charged that retaining posséssion by the vendor was prima fade evidence of fraud, but that the possession might be explained. Under this instruction from the court, the jury found that the possession of the mortgagor was bona fide; so that the only question now to be determined, respects the necessity of a delivery of the goods by a mortgagor, in order to constitue a valid mortgage. If the title passed by this mortgage to the plaintiff, Hooben, then the defendant who claims under Barker, must fail in his defense, according to the authority of 5 Ohio, 202, where it is said that no one can transfer a greater right or better title than he himself possesses. Authorities like the following, upon the subject of delivery, are found :

, “Delivery of goods to a carrier, is equivalent to a delivery to the purchaser.”

“ Symbolical delivery will in many casos be sufficient, and equivalent in its legal effect to actual delivery.”

“ Delivery of the key of a warehouse in which goods sold are deposited, transfer’s the property.” So the delivery of the receipt of the storekeeper for the goods.

*In the sale of a ship at sea the delivery must be symbolical. If the vendor take the vendee within sight of ponderous articles and shows them to him, it amounts to a delivery. Delivery of a sample has been sufficient to transfer the property. 2 Kent’s Com. 393-395. That the property passes to the buyer whore the sale is perfected without delivery, see 2 Kent, 392 ; 1 Swift’s Dig. 378, 380, 3 Johns. 170, authorities cited by the plaintiff’s counsel.

The delivery in a case like the present, where the mortgagee if he were to take possession, must, according to the understanding of the parties, immediately restore it, is so purely a matter of form, attended with no real benefit, that there seems to be but little reason for requiring the act. From the cases above noticed, and others of a similar character, it would be implied that, according to the general rule, a delivery is necessary to constitute or to prove a perfect change of property. The civil law required a delivery, and so it has been said did the common law. But we think delivery not necessary by the common law to pass the title to personal property; that a sale without it is complete as between the parties, though it be not so as to affect the interests in certain cases of third persons. Since the case in 5 Ohio, above referred to, the law has been settled in this state as to third persons also. We think, therefore, that delivery is not essential, and that the court erred in requiring proof of it upon the trial of this cause.

The judgment will be reversed.

Birchard, C. J.,

dissenting. I have always been of the opinion, that on a sale of personal property, whether absolute or conditional, a delivery, either actual or symbolical, is necessary to transfer the title, so as to defeat a subsequent bona fide purchaser for valuable consideration without notice.

In Twyne’s case it was held, that if possession did not accompany and follow the deed, the sale was fraudulent per se as against creditors and subsequent purchasers. In this *state the rule of the English and New York and United States courts has been modified. We now follow the recent decisions of those courts, and regard the retaining of (he possession after a sale as only prima facie evidence that it is fraudulent.

But that A. may set down in his office and make to B. a mortgage of personal property, which is not present and not even delivered to B., and thereby vest in him a title which will enable B. to defeat C. a bona fide purchaser, to whom A. may subsequently sell and deliver the same property, is just what I do not believe should be permitted.

I am aware that some writers have said that a sale of personal property without delivery is good and vests the title in the purchaser, and there may be decisions of cases by courts who follow the digests, the same way.

I would neither follow the digests nor such courts, upon a matter which is a departure from sound principles. I bow to the authorities in all cases, but by authorities, I mean the adjudication of respectable courts of last resort, whose decisions are based upon doctrines and principles that would do equal justice between man and man. It should be held that the right of Hooben to tho oxen in controversy, is inferior to the right of Bidwell. That Hooben’s right until delivery, was a mere right in contract, not a right to the property as against third persons. It was like a contract of sale where the goods have been stopped in transitu before delivery, no title vested.

Although a symbolical delivery in one sense may seem a mere farcical thing of little moment, something which might well be dispensed with, and which subserves no good purpose, yet frequently it is not so. Who can say in this case, that if a witness had been called to attest a mere formal delivery, it would not have prevented the imposition practiced upon Bidwell? It might have given notoriety to the sale. The witness called to attest the formal delivery might have given him information of the mortgage.

I look upon the rule that a delivery of some kind is necessary *to perfect a sale of personal property, as a very ancient one. If I could discover no reason why it was ever adopted, or why it should further be adhered to, I should not be willing to obliterate it so long as it produces no mischief. Ancient rules of law are like ancient landmarks, and the chances are ten to one, that in some way, or at some time, they will be of use.  