any time estopped by the appearance of ownership (in another person) acted upon, he would necessarily remain in that position. The statute, however, permits the owner to retake his goods at any time prior to the date of the receiving order, even after the commission of an act of bankruptcy and after creditors have been misled.1

It may be said that the statute is a rough approach to that justice which is meted out by the law of estoppel. It is difficult to offer any reason for handing over to creditors goods in which their debtor had not a shadow of an interest, which in no way affected their dealings with him, and which, as most frequently happens, they had never heard of. And it is just as hard in cases in which the debtor notoriously obtained all the credit he had upon the faith of his ostensible ownership of the goods to suggest that the true owner shall be allowed to subtract them the day before the receiving order. The best perhaps that can be urged is that for bankruptcy proceedings some arbitrary rules must be set, and that these are as good as others. It would be a rare case in which all the creditors would be found to be in the same position with reference to goods in possession of the bankrupt- that all, or that none of them, would prove their right to an estoppel. Some general standard apart altogether from considerations of individual situation therefore is formulated.?

Vendors and Vendees.- A purchaser may be estopped from asserting his title as against a subsequent purchaser from the same vendor if he permit the vendor to remain in possession of the goods. And similarly, a vendor having made a contract to sell goods may, by delivery of possession to the purchaser, be estopped from asserting his title or lien as against a subsequent purchaser. Such cases should properly be treated of in the present chapter, but for convenience they are relegated to another.3

4. Possession Accompanied by Other Circumstances.—

"Mere possession alone does not invest the agent with power to give the purchaser, however innocent, the right of property against the owner. Nor is it enough so to do that the owner put the agent into the possession. Something more must be coupled with such possession to enable the agent to effect a valid sale to the purchaser against the will or instructions of

1 Young v. Hope (1848), 2 Ex. 105; Graham v. Furber (1853), 14 C. B. 410; 23 L. J. C. P. 51; Ex parte Montague (1876), 1 Ch. D. 554.

2 See ante, ch. XI, p. 142.

3 Ch. XXIIL

the owner. That something more exists in the cases where the owner has invested his agent in possession with an apparent power to sell, or with the title to the property, or with the customary indicia of title, which purport that the title or right of property is in the party having the possession. The obvious justice is that if the owner has put the agent in possession and he has by acts of any kind held out the agent as having authority to sell, or has given the agent the means of holding himself out as the owner, in such cases the purchaser who has been thereby misled and been induced by reason of such apparent authority or indicia of title to part with his money or the property, without notice of the real fact that the agent has no authority to sell, or that the seller in possession is not the real owner, upon plain principles of natural justice is entitled to hold the property against the owner."1

Obtained by Fraud. The most important line of cases which may be noted under this heading are those in which the owner of goods has been prevailed upon to hand them over upon some misrepresentation, and the swindler has disposed of them to an innocent purchaser. Who is to lose?

Some of the authorities turn upon the distinction between cases in which there is a contract for the sale of goods (although induced by fraud), and those in which there was no contract at all, although sometimes the appearance of one. For example, where a broker got possession of goods from the owner by pretending to have sold them on account of the owner to S., which was not the fact, it was said that there was no contract at all. So also where one Blenkarn bought goods, knowing that the vendors thought that they were selling to a reputable firm known as Blenkiron & Co., it was held that there was no contract. Following this distinction it is said that where there is a contract, the title of the goods passes; that it therefore passes also to the sub-purchaser; and that this latter, having the legal title, and as good an equity as the original vendor, is entitled to maintain his purchase. In the absence of a real contract, on the other hand, it is said that the title is still in the original vendor, and that there are no equities superior to his. It is therefore held that in order to defeat the true owner,

"he must have parted with possession of his property with intent to pass the title to the wrong-doer, thus giving him the apparent right of disposal.” 4

1 Taylor v. Pope (1868), 45 Cold. (Tenn.) 416. Approved in Atlanta v. Hunt (1897), 100 Tenn. 89; 42 S. W. R. 483.

2 Hollins v. Fowler (1872), L. R. 7 Q. B. 616; 41 L. J. Q. B. 277; L. R. 7 H. L. 757; 44 L. J. Q. B. 169; Soltau v. Gerdau (1890), 119 N. Y. 380; 48 Hun, 537.

3 Cundy v. Lindsay (1876), 1 Q. B. D. 348; 2 Q. B. D. 96; 3 App. Cas. 459; 45 L. J. Q. B. 381; 46 L. J. Q. B. 233; 47 L. J. Q. B. 481. See Bush v. Fry (1888), 15 Ont. 122.

4 Barnard v. Campbell (1874), 58 N. Y. 76. See S. C., 55 N. Y. 456; Neal v. Williams (1841), 18 Me. 391; Coombs v. Chandler (1877), 33 Ohio,

"Where a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has done something to disaffirm the transaction." 1 Some of the legislation is in line with this view:

"When the seller of goods has a voidable 2 title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of the seller's defect of title."3

But there is another and a very important view, according to which the distinction between contract and no contract becomes, under certain circumstances, unimportant. For if the result of the transaction (whatever it may be) is that the swindler appears to have the title, then the question of estoppel by ostensible ownership arises. Here we must distinguish between cases in which the swindler obtains possession merely, and those in which the true owner hands over to him some evidence of the title. In the latter case there is no reason to doubt that a subpurchaser would be protected by estoppel of the true owner.

"It appears to me that quite apart from any contract which might be affirmed or disaffirmed afterwards, the question here is whether the true owner of the goods has so invested the person dealing with them with the indicia of property as that when an innocent person enters into a negotiation with the person to whom these things have been intrusted with the indicia of property, the true owner cannot afterwards complain that there was no authority to make such a bargain. Where that is the case it is no longer a question of affirming or disaffirming any contract between the owner of the goods, but a question whether the owner of the goods hus by his conduct allowed the person, who has either cheated him or to whom he has intrusted the goods, to hold himself out as the owner, so as to give a good title to a bona fide purchaser for value." 4

But if the swindler obtained possession merely, and under such circumstances that it could not be said that there being a contract he acquired the legal title, the result is usually different. The case then may be said to become one in which the innocent sub-purchaser relied upon mere possession as evidenc ing title, and that he has himself to blame; for (apart from market overt) the possession, even of a merchant, is not a suffi

178; Holland v. Swain (1879), 94 Ill. 154; Tiedeman on Sales, § 327, and the many cases there cited.

1 Kingsford v. Merry (1856), 11 Ex. 577; 25 L. J. Ex. 166. Approved in Pease v. Gloahec (1866), L. R. 1 P. C. 229; 35 L. J. P. C. 66. And see ante, ch. VIII.

2 As to the meaning of the word "voidable," see ch. XXV.

3 See 56 & 57 Vic. (Imp.), ch. 71, sec. 23.

4 Henderson v. Williams (1895), 1 Q. B. 525; 64 L. J. Q. B. 310; Vickers v. Hertz (1871), L. R. 2 S. & D. 113; Quirk v. Thomas (1858), 6 Mich. 120; Prentice v. Page (1895), 164 Mass. 276; 41 N. E. R. 279.

cient foundation for title. A corollary from this is that if the swindler, after thus acquiring possession, should himself warehouse or ship the goods and so procure a document of title to them, the sub-purchaser's position would not be improved.' It will be observed that it was not with the assistance of the true owner, in this case, that the swindler became possessed of the document of title. It has been held, however, that if the goods had been warehoused by the original owner, and he assented to the transfer of them in the books of the warehouseman, he would be estopped, even although there was no other evidence of title.2

It must not be thought, however, that this line of decision at all interferes with the validity of the distinction between cases of contract and no contract. It merely reminds one that even in cases in which there is no contract the true owner may by his conduct be estopped from setting up his title.

Other Cases.-There are many other cases exemplifying the principle under consideration. For example, if a safe manufacturer, besides handing over possession of a safe under a hireand-sale contract, should paint the purchaser's name upon it, he would be estopped. A distinction is made, however, where a sub-purchaser has no reason for thinking that it was the manufacturer who had painted on the name; because, in such cases, even if there had been a misrepresentation by the manufacturer, the sub-purchaser was not aware of it—for all he knew his own vendor might have painted on the name, and he therefore did not act upon the representation as being that of the manufacturer.1

So also possession coupled with a receipt for the purchase price would accredit the title and estop the true owner, even although the money had not in fact been paid, nor had the title passed. "Settled by note" would be sufficient for such purpose.5

1 Soltau v. Gerdau (1890), 119 N. Y. St. 318; 32 Atl. R. 1029. As to hire380; 48 Hun, 537.

2 Henderson v. Williams (1895), 1

Q. B. 525; 64 L. J. Q. B. 309.

3 O'Connor v. Clark (1895), 170 Pa.

and-sale contracts see supra.

4 Walker v. Hyman (1877), 1 Ont. App. 345. And see ch. XI.

5 Quebec Bank v. Taggart (1896), 27 Ont. 169.

CHAPTER XXII.

OSTENSIBLE OWNERSHIP AND AGENCY-GOODS-DOCUMENTS OF TITLE.

It is somewhat surprising that nowhere is there to be found any adequate explanation of the nature and purpose of documents of title and their true relation to the transactions which they represent. There are no doubt text-books which treat with more or less completeness of title-deeds to real estate; and several that are devoted to bills of lading, dock warrants, transfers of shares, etc.; but no synthesis has been attempted, and no general principles have been established which would be of assistance in dealing with the questions which we are now to encounter.

Classes of Documents.- Observe first that there are three classes of documents of title: (1) those which certify as to the condition of title; (2) those which pass property or title; and (3) those which merely evidence the fact that property has already passed. Certificates of ownership of ships and shares are examples of the first class; conveyances of land and transfers of shares are instances of the second (although they may also be said to evidence the transactions); while indorsements of bills of lading, dock warrants, etc., are examples of the third.

Estoppel by Transfers.— Omitting for the moment the first of these categories, let it be noted that documents of the second and third classes have this in common: that whether they operate as, or are merely evidence of, a transfer of property, they authoritatively indicate to subsequent purchasers that the grantors have parted with their interest in the thing conveyed. In other words, if a grantee should represent to an innocent subpurchaser that he (the grantee) was the absolute owner of certain property, and should, as evidence of such representation, produce a conveyance or record of a conveyance from A. to himself; and if the sub-purchaser should, upon the faith of the representation so accredited, change his position prejudicially, then A. ought to be estopped from setting up any claim incon