possession in the common law - HiddenMysteries Information Central

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course the same principle will apply to a warehouseman or a wharfinger.’ 2 And ‘the contract with a carrier to
carry goods does not make the carrier the agent or servant of the person who contracts with him, whether he
be the vendor or the purchaser of the goods.’ 3 ‘The vendor has a right to stop in transitu until the goods have
actually got home into the hands of the purchaser, or of some one who receives them in the character of his
servant or agent.’ 4
3. Lastly, it is a possible though not very common case that the buyer is in possession of the goods as the
seller’s bailee. In this case there may be, upon an oral contract of sale, a sufficient acceptance and receipt of
the goods by the attribution of the continuing custody to the holder’s new character of owner. 5 It is a question
of fact in every case whether such [75] was the effect of the acts of the parties. Here there is no change of
possession, only a change in the character of the possession. But if a servant having goods of his master’s in
his custody bought them from the master, there would be a change in the possession itself.
It will have been observed that the question whether a partial delivery of goods operates as a delivery of the
whole does not arise under the Statute of Frauds, as acceptance and receipt of any part of the goods is by the
words of the Statute sufficient; though it must of course be an acceptance and receipt with reference to the
contract of sale as a whole.
§ 8. Mistaken Delivery.
We have seen that delivery is favourably construed in accordance with the intention of the parties. And we
have assumed the delivery to be rightful and rightfully made in so far as we have not considered what might
be the effect of want of title in the deliveror, or want of a true intention to give and take delivery as between
the parties.
As regards the deliveror’s title, any defect or absence of rightful interest or authority on his part will
certainly not prevent the deliveree from acquiring possession. In certain cases it will not prevent him from
acquiring property, or the immediate right to possess, even as against the true owner. But the deliveror must
have possession to begin with; and this may be important in the case of land, where, as we shall see, an
occupier without title by no means acquires possession by mere entry. He may acquire it by effective
occupation, and then he has a wrongful estate in fee simple. But unless and until his wrongful seisin –
wrongful as against the true title, but good as against all strangers – is by such occupation acquired and
established, he has nothing to deliver. In this way it is possible for a trespasser who has entered without right,
and has for the moment more physical power to exclude others than anyone else, to be still incapable of
giving even a possessory interest to a third person. Therefore [76] under the common law system of pleading
it was not a good plea to say that when a man made an alleged feoffment he had nothing in the land. That was
an argumentative general issue, and the only proper course was simply to deny the feoffment: ‘sera chase a
dire que il n’enfeoffa pas.’ 1
What it is that passes by a particular livery (or by any form of assurance equivalent by statute or otherwise
to livery) as to parcels or as to the interest conveyed, depends in the first instance on the words used and on
their true legal effect. In modern practice, therefore, questions of this kind have to be determined, when they
arise, by the general rules applicable to the interpretation of deeds. There may also be questions of fact, as
explained above, 2 as to the identity or extent of the subject-matter possessed by the grantor and comprised in a
particular description.
The validity of a contract to sell land may be affected in various ways and degrees by mistake or
misdescription, as is well known. This is a matter of personal rights, independent of the actual change of
estate or possession, and does not concern us here.
Questions might be raised as to the effect of personation. Consider first the case of conveyance by grant,
statutory or otherwise. John, by pretending to be William (with stolen or forged letters of introduction, or the
like), induces Peter to make and deliver to him, in his false name of William, a grant of Blackacre for the life
of William, or in fee simple. It is clear that by this deed nothing passes to John. And if under colour of it John
2
James L.J. (summing up the unanimous opinion of the Court), Ex parte Cooper, 1879. 11 Ch. Div. 68, 78.
3
Cotton L.J., Ex parte Rosevear China Clay Company, 1879, 11 Ch. Div. 560, 571.
4
James L.J. ib. at p. 568.
5
Edan v. Dudfield, 1841, 1 Q.B. 302; Benjamin on Sale, § 173.
[76] 1 10 Ed. IV. 8, 9. per Littleton; Butler on Co. Litt. 330 b. Cf. Cooper v. Vesey. 1882. 20 Ch. Div. 611, 623, 627.
2
P.30.