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OF THE ALIENATION OF CHOSES IN POSSESSION.
$1. Of the means of transferring the Ownership of
Chattels. CHOSES in possession have always been freely alienable from one person to another. The feudal principles of tenure, which in ancient times opposed the alienation of landed estates, had no application to chattels ; although, as we shall hereafter see, the full right of testamentary disposition was not at first enjoyed in respect of goods. And the manner in which the alienation of personal chattels is effected is in many respects essentially different from the modes of conveying real estate. In ancient times, indeed, there was more similarity than there is at present. Thus by the early common law a gift of goods might be made with or without writing or deed, but was invalid unless completed by delivery of possession (n). Land too was transferable at common law by feoffment, or the gift of a freehold estate therein ; this might well have been made by word of mouth, but was void without livery of seisin (0). The Statute of Frauds made writing necessary to a feoffment (P); and now the chief requisite to the conveyance of land is a deed (9). The alienation of goods has had a different history. In two cases the transfer of chattels is still regulated by
(n) Bract. fo. 10 b, 15 h, 38, ob; Britt. liv. ii. ch. 2, § 10; ch. 3, $S 1, 15; ch. 8, § 11; ch. 9, § 1; Cochrane v. Moore, 25 Q. B. D. 57, 64-67.
(0) Williams, R. P. 139, 17th
(P) Williams, R. P. 148, 119, 17th ed.
(q) Williams, R. P. 138, 119, 193, 199, 465, 17th ed.
the old common law principles ; these are gift and loan for consumption, in which delivery of possession is essential to pass the property. But in modern law the property in chattels may be well assigned by deed, without the necessity of delivering over the possession of the goods. Property in chattels is also transferable by sale in a manner which has no parallel amongst the methods of conveying land (r). Each of these modes of conveyance deserves a separate notice.
1. And first, personal chattels are alienable by a mere gift of them, accompanied by delivery of possession. For this purpose no deed or writing is required, nor is it essential that there should be a consideration (8) for the gift. Thus if I give a horse to A. B., and at the same time deliver it into his possession, this gift is complete and irrevocable, and the property in the horse is thenceforward vested in A. B. (t). But if I purport to assign the horse, and yet retain possession of it, the gift, though made by writing (so that it be not a deed), is absolutely void at law (u); and equity will give no relief to the donee (x). It may, however, be observed, that if the donor should not attempt to part with the subject of gift, but should declare that he keeps possession of it in trust for the donee, equity will seize on and enforce this trust, though voluntarily created (y).
(r) As to the early law of sale of goods, see Glanv. x. 14; Bract. fo. 61 b, 62 a; Y. B. 49 Hen. VI. (10 Edw. IV.), 18, pl. 23 ; 17 Edw. IV. 1, pl. 2; 18 Edw. IV. 21, pl. 1 : Keilway, 77 b.
(s) Williams, R. P. 74, 17th ed.
(1) 2 Black. Comm. 441.
(u) Irons v. Smallpicce, 2 B. &
(2) Antrobus v. Smith, 12 Ves. 39, 46 ; Edwards v. Jones, 1 My. & Cr, 226 ; Dillon v. Coppin, 4 My. & Cr. 647, 671 ; Richards v. Delbridge, L. R. 18 Eq. 11 ; Re Breton's Estate, Breton v. Woollven, 17 Ch. D. 416.
(y) Ellison v. Ellison, 6 Ves. 656 ; Ex parte Dubost, 18 Ves. 140, 150 ; Vandenberg v. Palmer, 4 K. & J. 204 ; Jones v. Lock, L. R. 1 Ch. 25 ; see Williams, R. P. 171, 172, 17th ed.; ante, p. 26.
Delivery of possession being essential to the validity Transfer of of a gift of chattels, it is important to consider by what possession. means the possession of goods may be transferred. Now we have seen that, besides an actual possession of goods, where the possessor has himself the exclusive control of them (z), there may be what is called a constructive possession of chattels. This arises where goods are in the possession of a bailee under a simple bailment, when the bailor is entitled to resume possession at will, and either the bailee or the bailor may maintain trover for the goods (a). In such cases the possession of the bailee is considered to be, in construction of law, the possession of the bailor (6). This being so, the possession of goods may be transferred in two ways. The first is by the possessor handing over the actual control of the goods to another. The second is by the possessor changing the character of his possession, without any change in the actual control of the goods. This may occur where the possession of an owner is changed to that of a bailee for another, and vice versá, and where the possession of a bailee for one person is changed to that of bailee for another. Actual delivery of possession evidenced by a change Actual in the control of the goods seldom presents much delivery of
possession. difficulty. If a friend gives me a book in his library, and I at once take it to my own home, or if goods be sent to a warehouse for storage in my name and at my expense, it is equally clear that a complete transfer of possession is effected.
There may however be an actual delivery of possession without any handling of the goods. Thus, if goods be stored under lock and key, there may be an actual delivery of possession of them by the delivery of the key; for when the possessor of goods hands over the means of access to them, he effectively parts with their control (c).
(2) Ante, p. 48. (a) Ante, p. 54. W.P.P.
(6) 4 T. R. 490 ; 7 T. R. 12.
Constructive delivery of possession.
Constructive delivery of possession by a change in the character of a possession, which is otherwise undisturbed, has been held to take place far more frequently in cases of sale than of gift. Thus it is settled that, where goods sold remain under the actual control of the seller, the buyer may nevertheless receive possession of the goods constructively, if the seller cease to hold them as owner, and keep them as bailee for the buyer (d). But there is not any reported case in which this doctrine has been successfully invoked to sustain a gift. It is, however, submitted that, on principle, the delivery of possession essential to the validity of a gift should be satisfied by a constructive as well as by an actual delivery of possession. The difficulty, in the case of a gift, is to establish an irrevocable change of the donor's possession from that of owner into that of bailee for the donee. When there is merely a verbal gift coupled with a voluntary promise to hold the goods for the donee, without any change of actual control, it seems impossible to hold that the donor is not at liberty to change his mind and use his possession for his own benefit as owner (e). But if there were a voluntary gift accompanied with a contract that the donor should keep the goods as the donee's bailee for reward, could it be maintained that there was not an irrevocable change of possession on the donor's part ? And if there was, the gift would appear to be perfect (f). It seems
244 ; Ryall v. Rowles, ib. 362 ;
pear to be effectively delivered.
(d) Elmore v. Stone, 1 Taunt. 458 ; Castle v. Svorder, 6 H. & N. 828 ; Benjamin on Sale, 135, 2nd ed., 165, 4th ed.
(e) See the cases cited ante, p. 64, n. (u); and Re Ridgway, 15 Q. B. D. 447.
(f) If a horse were given, with an agreement that the donor should keep the animal for the donee, charging for his standing and keep, surely the gift wouli be complete; see Elmore v. Stone, 1 Taunt, 458.
too that an irrevocable change of possession might be established, where a donor remaining in possession of the goods given has nevertheless assented to the exercise by the donee of acts of ownership over
When goods are in the possession of a bailee, it is Gift to bailee
or other held that there may be a valid gift of them from the
possessor. owner to the bailee by mere word of mouth, expressing an intention of present gift (h), coupled with that change of possession, which takes place when the bailee, with the donor's consent, ceases to hold the goods as bailee and begins to hold them for his own exclusive use as owner (i). A gift may be made in the same way from the owner of goods to a finder or wrongful taker, in whose possession the goods remain (k).
When goods are in the custody of a simple bailee, Constructive such as a wharfinger or carrier, the constructive posses- goods are in
delivery when sion of the bailor may be transferred to a third person the custody of by the agreement of all parties that the goods shall be bailee! held for the transferee. But the rule is that there can be no legal delivery of the goods from the bailor to a third person without the assent of the bailee; and the constructive possession of the bailor is accordingly not transferred until the bailee has consented to hold the goods for the transferee (). But when goods are at sea,
(g) Take the case of a sale of ib. 278 ; Bryans v. Nix, 4 M. & the goods by the donee (see Chap- W. 775, 791 ; Farina v. Home, lin v. Rogers, 1 East, 192), or of 16 M. & W. 118; M'Ewan v. his marking timber with his Smith, 2 H. L. C. 309 ; Benjamin initials, as in Stoveld v. Hughes, on Sale, 132, 675 et
2nd ed. ; 14 East, 308.
161, 82€ et seq. 4th ed.; stat. 56 (h) Promise of future gift will & 57 Vict. c. 71, s. 29, sub-s. 3. not do ; Shower v. Pilck, 4 Ex. It appears from these authori. 478.
ties that, at common law, the (i) Winter v. Winter, 9 W. R. bailor's constructive possession is 747 ; Kilpin v. Ratley, 1892, 1 not transferred merely by his Q. B. 582.
handing over an order for de(k) Shepp. Touch. Preston'sed. livery of the goods. But as we 240, 241.
shall presently see, this rule is () Zwinger v. Samuda, 7 now modified by the Factors Act, Taunt. 265; Lucas v. Dorrien, 1889.