of sale, to distinguish it from the bills of sale made on subsequent transfers of the ship. But, as we have already remarked,

contract, or that he was to superintend the building of any vessel which Joyce could, at his pleasure, transfer to another person. Still, it must be admitted, that this is by no means conclusive as to the question of property; it may be that it would have been a breach of contract not to deliver the specific vessel to the plaintiff as soon as she was completed, and yet the property, until she was completed, might have remained in Joyce." But it was held, that, however ambiguous these circumstances might be, still the punching of the name, and the declaration of the builder, were conclusive to show that it was the intention of the parties that the vessel should pass to the plaintiff. Affirmed in the Exchequer Chamber, 25 L. J., B. Q., 321, 36 Eng. L. & Eq. 148. In Baker v. Gray, 17 C. B. 462, 34 Eng. L. & Eq. 387, payments were to be made by instalments from time to time, and it was stipulated that if the vessel was not finished within a certain time the vendee might enter and take possession of her, and that the property in her should be deemed, from the payment of the first instalment, to be in the vendee. It may, therefore, be considered as doubtful whether the mere fact of payment being made by instalments, although commensurate with the progress of the vessel, is of itself proof that the parties intended the property to pass, and a contract similar to the one in Baker v. Gray has at least simplicity and safety to recommend it. It was decided in Glover v. Austin, 6 Pick. 209, that, although a contract to build a ship was inoperative to pass the property therein, yet a conveyance of the keel, after it had been laid, vested the property of that in the vendee, and drew after it all subsequent additions, according to the maxim of the Civil Law, “proprietas navis carinæ causam sequitur.” See also Sumner v. Hamlet, 12 Pick. 76, 82.

An agreement to pledge a vessel then building to cover certain advances, and that the pledgee may purchase her at a certain rate, is neither a sale nor a mortgage or pledge, and transfers no property in the vessel, although the advances are made. Bonsey v. Amee, 8 Pick. 236. But in Reid v. Fairbanks, 13 C. B. 692, 24 Eng. L. & Eq. 220, where, under an agreement to build a ship, the defendant, to secure the plaintiffs, as well for the advances they had previously made to him as for those which they should be called upon to make to complete the vessel, made them a bill of sale thereof, which stated that he transferred to them a certain ship in progress of building, (describing it,) and also six hundred tons of timber to finish the vessel, "to have and to hold the said ship or vessel, etc., to the said J. Read, when the said ship or vessel shall be completed and finished, in as full, ample, and perfect a manner as if the said ship or vessel was ready for sea, and ready to be delivered to the said J. Read at the time of executing these presents," it was held by the court that the property passed to the plaintiffs by the bill of sale, and that the habendum had not the effect of postponing the vesting thereof to the time when the ship should be completed. Jervis, C. J. said: "There is no doubt the whole question is one of construction of contract. There may be cases in which such a contract would have the effect of transferring the property only at a future period, or it may have the effect of transferring the property at once; but it seems to me that here it was intended to pass the property at once, because the object of the instrument was to give the plaintiffs security for advances. It has been contended that it is no security, but merely a contract between the parties; but it professes to be a security, and it cannot be so unless it operate as a present sale, and it does not signify what happens afterwards. It is, therefore, unimportant to consider the effect of the registration of the vessel. I think it very likely that if there had been no bill of

this distinction does not exist, or not for any practical purpose, in this country.1

The builder should deliver to the first owner his certificate, that the owner may give it to the collector, as required by the statute of registration.2

4. Of the Possession of the Purchaser.

*

The ship, although only a personal chattel, is one of a peculiar character; and these peculiarities introduce some modifications in the principles of the law of sale, or in the application of them; particularly in the rule as to delivery and possession. This rule, in reference to chattels generally, is, that if possession do not pass at once, or with but little delay, it is a badge of fraud, and the sale is defeated. But a ship may be sent to sea, not merely to go to the antipodes, but to pass from port to port as profitable engagements shall offer, for many years. It is certain, however, that the owner should, in the mean time, be able to sell his ship, if he wishes to. And the rule which we would lay down is this: that a bona fide sale, on consideration, with whatever transfer of papers and of registry can be made, is valid, if possession be taken by the purchaser as soon as is practicable by reasonable endeavor, however long it may be before such possession is or can be taken.

The principles, we should say, are these: first, that the sale, meaning a transfer on good consideration and in good faith, does not give merely an inchoate right, to be completed by possession; but does in fact pass the whole property in the ship, and is a complete transfer thereof, vesting the same in the pur

sale there would still have been enough to bind the property in the ship. But it is unnecessary to consider that part of the case." The effect of these decisions seems to be that the time when the property in a ship passes, on a contract for building her, is a question of intent to be gathered from all the circumstances of the case. Where the property does pass before the completion of the ship, the builder has a common law lien, or right of possession to finish her and earn the full price. Woods v. Russell, >supra.

1 See ante, p. 57, note 2.

2 Act of 1792, ch. 1, § 8, 1 U. S. Stats. at Large, 291. As to the effect of the transfer of the builder's certificate to the purchaser under the English Registry Acts, see Woods v. Russell, 5 B. & Ald. 942.

chaser, but liable to be divested by his laches in taking possession. The second would be this: that the purchaser is not bound to take possession as soon as possible by any means; he is not bound to go, or send an agent, or even transmit authority at once to a foreign and a distant port; but may, generally at least, wait her arrival in her home port. He ought, however, in prudence, if not in law, to forward notice of the sale and transfer to him to the master of the ship, (which has been held equivalent to taking possession,) and also to cause his name to appear on the register of the United States as owner, as soon as practicable, that he may give the public whatever notice such a record gives.

The distinction we make in the first principle is of much practical importance. If such a sale gives only an inchoate right, to be completed by possession, then of two innocent transferrees which ever can, by any means, get possession first, prevails over the other. This we deny to be the law, and hold that the cases which seem to lead to this conclusion are either erroneous, or are to be justified only by their peculiar circumstances. Undoubtedly, priority of possession may lead to an inference of laches in him who does not get possession; but it by no means proves it; and that is the only question. This will always be a question of mixed law and fact, and may sometimes be a difficult one. We say, however, that a subsequent purchaser cannot defeat the title of an earlier purchaser, by using means to get possession which the first purchaser either could not use or was not bound to use, and the non-user of which was not laches. Even that court which has permitted a second purchaser to complete his title by a first possession, and defeat a former purchaser without laches, has held that an attaching creditor has not a similar right. For if there be a sale in good faith, then an attachment by a creditor of the seller, and after that, but without any laches, possession is taken by the purchaser, the attachment is defeated.1

1 Both in England and in this country, such a transfer, whether absolute or by way of mortgage, or in trust, is valid, provided the vendee or mortgagee take possession of the ship within a reasonable time after her arrival in port. Such actual possession being requisite, not to vest the property in him, for this is completed by the livery of the bill of sale, or other muniments of title, Lord v. Ferguson, 9 N. H. 380; Brooks v. Bondsey, 17 Pick. 441,- but to exclude the operation of the statutes of James I.

The effect of an entry of a transfer in the custom-house record, or of a registration of the purchaser, as owner, or of the want of

and Elizabeth, where they are recognized, and generally because a failure to take possession is evidence of fraud. Ex parte Matthews, 2 Ves. Sen. 272; Atkinson v. Maling, 2 T. R. 462; Gordon v. East India Co. 7 T. R. 228, 234; Robinson v. Macdonnell, 5 M. & S. 228; Philpot v. Williams, 2 Eden, Ch. 231; Ex parte Batson, 3 Bro. Ch. 362; Kirkley v. Hodgson, 1 B. & C. 588; Mair v. Glennie, 4 M. & S. 240; Hay v. Fairbairn, 2 B. & Ald. 193; Portland Bank v. Stubbs, 6 Mass. 422; Portland Bank v. Stacey, 4 Mass. 661; Putnam v. Dutch, 8 Mass. 287. In Lamb v. Durant, 12 Mass. 54, 56, Parker, C. J., held it to be well settled that such a conveyance by deed passes the property. But the distinction, if any was meant, is not recognized in the other cases. See Tucker v. Buffington, 15 Mass. 477; Badlam v. Tucker, 1 Pick. 389; Gardner v. Howland, 2 Pick. 599; Joy v. Sears, 9 Pick. 4; Pratt v. Parkman, 24 Pick. 42; Turner v. Coolidge, 2 Met. 350; Winsor v. McLellan, 2 Story, 492; Brinley v. Spring, 7 Greenl. 241; Morgan's Ex'rs v. Biddle, 1 Yeates, 3; Wheeler v. Sumner, 4 Mason, 183; D'Wolf v. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co. 1 Pet. 386, 449. But the purchaser takes possession subject to all valid claims before notice of transfer. See cases supra, also Gillespy v. Coutts, Ambler, 652. It is true that in Portland Bank v. Stubb, 6 Mass. 422, 425, Parsons, C. J., says: "The conveyance by Weeks & Son to the plaintiff's being a mortgage, it is a pledge of a personal chattel. But to such pledge a delivery of the chattel is essential to give the pawnee a special property in it. And although a ship at sea may be mortgaged, yet the mortgagee must take possession as soon as he may on her return, before the mortgage is complete." But by this is meant only that it is not complete in regard to a third person without notice. The cases also of Lamb v. Durant, 12 Mass. 54, and Lanfear v. Sumner, 17 Mass. 110, have been supposed to support the doctrine that as between two innocent purchasers he who first acquires actual possession completes his title as against the other; and the latter case has been questioned on that ground. Ingraham v. Wheeler, 6 Conn. 277, 284; Ricker v. Cross, 5 N. H. 570, 573. See, also, 6 Law Reporter, 95. This is owing, we think, to a misunderstanding of the principles on which those cases were decided. It is well settled, that, as between the parties, the property in goods sold will pass to the vendee, although the possession may remain in the vendor. But under the statute of 13 Elizabeth, to render the transfer valid as to third parties without notice, there must be a change of possession. 1 Parsons on Contracts, 441, 442; Twyne's case, 1 Smith's Lead. Cas. 1. But, where actual delivery is impossible, constructive, or, as it is sometimes called, symbolical delivery, is sufficient. The difficulty has arisen from overlooking this fact. In both Ingraham v. Wheeler and Ricker v. Cross there was a delivery of this nature. But in Lamb v. Durant and Lanfear v. Sumner this was not the case. In the latter, the goods were supposed by their owners in Philadelphia to be at sea. They were actually landed in Boston. A written assignment was made in Philadelphia and delivered, but no money was paid, no bill of lading transferred, and there was no pretence whatever of any symbolical delivery. The goods were subsequently attached by creditors of the vendors, and possession taken by the sheriff, against whom the action was brought. The court did not deny, that, if there had been a legal, as distinguished from an actual delivery to the first purchaser, his title would have been protected. See also Gardner v. Howland, 2 Pick. 599, 602, per Parker, C. J. In Lamb v. Durant, the vessel was owned by a firm. One partner was abroad, and in actual possession of the vessel. It was held, that, under the cir

such registration, presents questions connected somewhat with that which we have just considered. The question is, in fact, whether this custom-house record is intended to be, or is in law, a public record, having a similar effect upon title that the public registry of deeds has on land titles. That is, is an entry of transfer or title in that registry, public notice to all the world; and can a subsequent transferree hold wherever there is no such register, unless, — agreeably with the equitable construction of the statutes of land registry,— a knowledge of the transfer can be brought home to him, which shall have, so far as he is concerned, the same effect as a public registry? This subject has already been fully considered, and we refer to what we have said upon it in a former section and notes.1

cumstances of the case, a transfer by the home partner must be subject to all incumbrances, made by the partner in possession before notice of transfer, and that accordingly a sale with delivery of possession by the latter would intercept the title attempted to be passed by a sale by the former. In such a case it might well be held that there could be no constructive delivery by the home partner. See Hewitt v. Sturdevant, 4 B. Mon. 453. The purchaser must, however, take possession within a reasonable time after the vessel arrives in port, and what is such a reasonable time is a question for the jury to determine from all the circumstances of the case. Joy v. Sears, 9 Pick. 4. Possession must be taken before the departure of the vessel on a new voyage, where the transferree is aware of her arrival in port. Ex parte Matthews, 2 Ves. Sen. 272. In Brinley v. Spring, 7 Greenl. 241, the court say that it may be deduced from the case of Mair v. Glennie, that notice to the captain supersedes the necessity of taking possession of the ship. So in Turner v. Coolidge, supra, the court strongly inclined to the opinion, that the possession of one part-owner who acted for himself and also for the other part-owner, who had purchased the rest of the vessel, superseded the necessity of the vendee's taking formal possession, and vested the property in him. See, also, Addis v. Baker, 1 Anstr. 222; Winsor v. McLellan, 2 Story, 492. Where the assignment is conditional, as in the case of a mortgage, an agreement that the mortgagor shall remain in possession until condition broken likewise relieves the mortgagee from the obligation to take possession. Badlam v. Tucker, 1 Pick. 389; Conard v. Atlantic Ins. Co. 1 Pet. 386, 449. As to the consequences of allowing the assignor to remain in possession, where there is no such agreement in the bill of sale, and the ship is not at sea, under 21 Jac. c. 19, § 11, see Monkhouse v. Hay, 2 Brod. & B. 114; Robinson v. McDonnell, 2 B. & Ald. 134; Stephens v. Sole, cited in Ryall v. Rowles, 1 Ves. Sen. 352; Hall v. Gurney, 24 Geo. 3, B. R., 1 Cooke's Bankrupt Laws, 342. It would seem in accordance with the general principle governing such transfers, that it is not essential to their validity that the ship should be at sea at the time, provided she is equally beyond the immediate control of her owner, and accordingly in Ex parte Batson, 3 Bro. Ch. 362, and in Putnam v. Dutch, 8 Mass. 287, the court held a sale of a vessel in another port to be effective, provided the vendee was guilty of no laches in taking possession on her arrival in the port where he resided.

1 See p. 40, note 2, and sect. 1, of this chapter.