sonal property is actually paid for and symbolic delivery made, and the property is leased by the vendee to the vendor in whose possession it remains, it is not void as to the vendor's creditors in the absence of proof of actual fraud.51 The delivery of a bill of parcels to the purchaser, however, who thereupon gives a lease of the goods sold to the seller, is not sufficient to pass the title as against a subsequent purchaser in good faith from the seller, there having been no other delivery or change of possession.52 A sale of chattels not accompanied by actual or constructive delivery is not valid as against creditors, where the seller does not continue in possession as agent, servant or lessee, and the buyer exercises no control over the property, although the sale is good between the parties thereto.53 14. Constructive and symbolical delivery - Vessels and cargoes. Where property abroad is transferred, as in the case of a ship or cargo at sea or in a foreign port, either as security or absolutely, the delivery of a deed of transfer of the vessel or a bill of sale of the cargo passes the title to the vendee, as against creditors of the vendor, if the purchaser uses due diligence and takes possession within a reasonable time after her return to port and he has knowledge of their being within reach. Where property at sea was assigned to one creditor it was held invalid as Md.-Glenn v. Grover, 3 Md. 212. Mo.-Wall v. Beedy, 161 Mo. 625, 61 S. W. 864. W. Va.-Blackshire v. Pettit, 35 W. Va. 547, 14 S. E. 133. 51. Mass.-Wheeler v. Train, 20 Mass. 255. N. H.-Thompson v. Esty, 69 N. H. 55, 45 Atl. 566. Pa.-McCullough v. Willey, 200 Pa. St. 168, 49 Atl. 944, 192 Pa. St. 176, 43 Atl. 999; Bell v. McCloskey, 155 Pa. St. 319, 26 Atl. 547. S. C.-Pringle v. Rhame, 10 Rich. L. 72, 67 Am. Dec. 569. 52. Harlow v. Hall, 132 Miss. 232; 54 Packard v. Wood, 4 Gray (Mass.), 307. 53. Hastings v. Sproul, 10 Pa. Super. Ct. 82, 44 W. N. C. 37, 16 Lanc. L. Rev. 169, 44 Wkly. Notes Cas. 37. 55 against another creditor attaching it before possession taken under the assignment, although there has been no unreasonable delay.5 Where personal property is in the possession of a sheriff at the time of an assignment by the judgment debtor for creditors, the transaction is not within the statute of frauds, which requires an immediate delivery of goods sold.56 15. Where actual delivery is impossible or property is not susceptible of complete manual delivery.-Where, from the nature of the transaction, possession either could not be delivered at all, or at least without defeating fair and honest objects intended to be affected by, and which constitute the motive for entering into, the contract, or where personal property sold is not reasonably susceptible of an actual or complete manual delivery, a symbolical or constructive delivery is sufficient, as against creditors of the vendor, and the fair and honest purpose of the vendor and vendee will not be defeated, if the conduct of the parties showed that there was an intention to transfer the possession as well as the title, and the vendee assumes such control of the property as ought reasonably to indicate a change of ownership.57 Thus, a delivery of the key of a granary is a sufficient symbolical Gardner v. Howland, 19 Mass. 599; Badlam v. Tucker, 18 Mass. 389, 11 Am. Dec. 202; Buffington v. Curtis, 15 Mass. 528, 8 Am. Dec. 115; Putnam v. Dutch, 8 Mass. 287; Portland Bank v. Stacey, 4 Mass. 661, 3 Am. Dec. 253. Eng.-Lempriere v. Pasley, 2 T. R. 485. 55. White v. Cole, 24 Wend. (N. Y.) 116; Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119. 56. Mumper v. Rushmore, 79 N. Y. 19. 57. N. Y.-Fisher v. Stout, 74 App. Div. 97, 77 N. Y. Supp. 945; Hollingsworth v. Napier, 3 Caines, 182, 2 Am. Dec. 268. U. S.-Stelling v. G. W. Jones Lumber Co., 116 Fed. 261, 53 C. C. A. 81. Cal.-Feeley v. Boyd, 143 Cal. 282, 76 Pac. 1029, 65 L. R. A. 943; Harris v. Smith, 132 Cal. 316, 64 Pac. 409; Curtner v. Lyndon, 128 Cal. 35, 60 Pac. 462; How v. Johnson, 117 Cal. 37, 48 Pac. 978; Woods v. Bugbey, 29 Cal. 466; Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135; Cartwright v. Phoenix, 7 Cal. 281. Colo.-Cook v. Mann, 6 Colo. 21. Conn.-Dann v. Luke, 74 Conn. 146, 50 Atl. 46; Hull v. Hull, 48 Conn. 250, 40 Am. Rep. 165. Idaho.-Rapple v. Hughes (1904), delivery of a lot of wheat therein as against the seller's creditors, this being the only delivery practicable at the time.58 Where the buyer and seller of corn in cribs went to the cribs, and possession was formally delivered, and the buyer nailed up the opening, it was a sufficient delivery.59 Heavy printing machinery and appliances not susceptible of immediate and complete delivery may be symbolically delivered by locking the doors of the premises where they are contained, and delivering the keys to the purchaser. The rule as to symbolical delivery is also applicable to chattels in process of manufacture," ore in a mine, piles of 77 Pac. 722; Simons v. Daly (1903), 72 Pac. 507. Ill.-Hart v. Wing, 44 Ill. 141. Ky.-Kenton v. Ratcliff, 105 Ky. 376, 20 Ky. L. Rep. 1239, 49 S. W. 14; Street v. Tuggle, 13 Ky. L. Rep. 539. Me.-Boynton v. Veazie, 24 Me. 286; Ludwig v. Fuller, 17 Me. 162, 35 Am. Dec. 245. Md.-Atwell v. Miller, 6 Md. 10. Mass.-Russell v. O'Brien, 127 Mass. 349; Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318; Cushing v. Breed, 96 Mass. 376, 92 Am. Dec. 777; Stinson v. Clark, 88 Mass. 340; Homes v. Crane, 19 Mass. 607; Badlam v. Tucker, 18 Mass. 389, 11 Am. Dec. 202; Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74; Allen v. Smith, 10 Mass. 308. Minn.-Lathrop V. Clayton, 45 N. H. Baldwin v. Thayer, 71 N. H. 257, 52 Atl. 852, 93 Am. St. Rep. 510. Okla.-Masters v. Teller, 7 Okla. 668, 56 Pac. 1067. Pa.-Goddard v. Weil, 165 Pa. St. 419, 30 Atl. 1000; McGuire v. James, 62 143 Pa. St. 521, 22 Atl. 751; Ren- Wis.-Missinskie v. McMurdo, 107 2 Eng.-Harman V. Anderson, Campb. 243, 11 Rev. Rep. 706; Manton v. Moore, 7 T. R. 67. 58. Sharp v. Carroll, 66 Wis. 62, 27 N. W. 822. 59. Pope v. Cheney, 68 Iowa, 563, 27 N. W. 754. 60. Kellogg Newspaper Co. V. Peterson, 162 Ill. 158, 44 N. E. 411, 53 Am. St. Rep. 300. 61. Thorndike v. Bath, 114 Mass. 116, 19 Am. Rep. 318, unfinished piano left with manufacturer for completion; Macomber v. Parker, 30 Mass. 175, bricks in kiln; Bond v. Bronson, 80 Pa. St. 360, a wagon. 62. Finding v. Hartman, 14 Colo. 596, 23 Pac. 1004. 63 brick, and logs floating in the water or piled upon the banks of a stream." 64 § 16. Bulky, cumbersome and ponderous articles.-A manual delivery is unnecessary where the goods or articles are ponderous, bulky, cumbersome, and difficult to remove. It is enough if they are placed in the power of the vendee. The law requires good faith and such acts only as are practicable according to the character of the property, the nature of the transaction and the circumstances attending the sale. The delivery of a shop, so separa 63. Hawkins v. Kansas City, etc., Brick Co., 63 Mo. App. 64. 64. U. S.-Leonard v. Davis, 1 Black, 476, 17 L. Ed. 222; Stelling v. G. W. Jones Lumber Co., 116 Fed. 261, 53 C. C. A. 81. Me.-Bethel Steam Mill Co. V. Brown, 59 Me. 9, 99 Am. Dec. 752; Boynton v. Veazie, 24 Me. 286. Mass.-Riddle v. Varnum, 37 Mass. 280. Vt.-Kingsley v. White, 57 Vt. 565; Ross v. Draper, 55 Vt. 404, 45 Am. Rep. 624; Sterling v. Baldwin, 42 Vt. 306; Fitch v. Burk, 38 Vt. 683; Birge v. Edgerton, 28 Vt. 291; Hutchins v. Gilchrist, 23 Vt. 82; Sanborn v. Kittredge, 20 Vt. 632, 50 Am. Dec. 58. It is a good delivery of timber in rafts in a river to go within sight of it and point it out to the vendee as the timber conveyed. Jewett v. Warren, 12 Mass. 300, 7 Am. Dec. 74. 65. N. Y.-Hayden v. Demets, 53 N. Y. 426, tender of warehouse receipts and payment of warehouse charges for fifty thousand pounds of copper held sufficient. Cal.-Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95; Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135. Il-Kellogg Newspaper Co. V. Peterson, 162 Ill. 158, 44 N. E. 411, 53 Am. St. Rep. 300, heavy printing machinery; Tecknor v. McClelland, 84 III. 471; Funk v. Staats, 24 Ill. 633; Taylor v. Thurber, 68 Ill. App. 114; Hewett v. Griswold, 43 Ill. App. 43. Ky.-Street v. Tuggle, 13 Ky. L. Rep. 539. Md.-Thompson v. Baltimore, etc., R. Co., 28 Md. 396; Van Brunt v. Pike, 4 Gill, 270, 45 Am. Dec. 126. Mass.-Rice v. Austin, 17 Mass. 197. Minn.-Lathrop V. Clayton, 45 Minn. 124, 47 N. W. 544. Pa.-Haynes v. Hunsicker, 26 Pa. St. 58, where the vendee of lumber takes every precaution to secure his purchase, but is prevented by bad roads from removing it, the lumber is not subject to levy. Vt.-Kingsley v. White, 57 Vt. 565. The rule applies to stacks of hay and standing corn, but not to farming implements and live stock. Ticknor v. McClelland, 84 Ill. 471. 66. Hayden v. Demets, 53 N. Y. 426; Barr v. Reitz, 14 Pittsb. L. J. (Pa.) 421. 69 ated from the realty as to be an article of personal property, may well be affected by the delivery of the key, though that delivery take place at a distance from the shop itself." Upon the sale of a safe, a delivery of its key, as well as the key of the room in which it is situated, is sufficient to constitute a valid sale as against creditors. The sale of personal property must be attended by such a delivery and change of possession as will accord with the nature of the property, followed by removal and actual possession as soon as the circumstances of the case permit. The actual removal or change in the location of personal property is not an essential to a valid transfer." But the bulky and cumbersome character of chattels sold, while it may affect the nature of the acts of delivery and taking possession to render the sale valid as against creditors, does not dispense with a delivery. Some act, definite and distinct, is always required; something tantamount to an actual delivery, some plain surrender of possession on the one hand and assumption of it on the other, is necessary." 71 8 17. Property in possession of third person as bailee.-Where personal property sold is in the possession or actual custody of a third person as bailee no actual delivery is necessary. The owner of such property does not have actual possession of it, and a transfer of it by bill of sale alone is good and valid as against creditors and subsequent purchasers, if the vendor gives the bailee notice of the sale, or the purchaser gives the bailee notice of the 67. Vining v. Gilbreth, 39 Me. 496. 68. Benford v. Schell, 55 Pa. St. 393. 69. Haynes v. Hunsicker, 26 Pa. St. 58; Kingsley v. White, 57 Vt. 565, sale of saw logs piled on land. 70. N. Y.-Lee v. Huntoon, 1 Hoff. Ch. 447. Cal.-Dubois v. Spinks, 114 Cal. 289, 46 Pac. 95; Cartwright v. Phoenix, 7 Cal. 281. Ill.-Ticknor v. McClelland, 84 Ill. 471; Hart v. Wing, 44 Ill. 141, sale of corn in the crib. Ky.-Kenton v. Ratcliffe, 105 Ky. 376, 20 Ky. L. Rep. 1239, 49 S. W. 14. Minn.-Lathrop V. Clayton, 45 Minn. 124, 47 N. W. 544. Pa.-Ayers v. McCandless, 147 Pa. St. 49, 23 Atl. 344; Cessna v. Nimick, 113 Pa. St. 70, 4 Atl. 193; Crawford v. Davis, 99 Pa. St. 576; Steele v. Miller, 1 Pa. Cas. 151, 1 Atl. 434. 71. Stimson v. Wrigley, 86 N. Y. 332. |