Page:Federal Reporter, 1st Series, Volume 4.djvu/900

 886 FEDEEAL BEPORTEIt. �bas no more apparent possession tlian a torrower. The eom- mon law, as maintained in a great majority of the states^ undoubtedly is that in the absence of actual fraud, or laches, on the part of the true owner, the possessor of a chattel, in a case of this kind, can only dispose of his own title. To tbis only two exceptions are generally admitted — First, that a vendor, who bas only the right to elect to avoid a sale, must make his election before the title of an innocent purchaser bas accrued ; second, that if the sale is for cash, the vendor may, by making delivery, be held to waive the condition. This last is a question of fact; but where evidence is very stronjj, a question of fact becomes one of law, by the courts calling it a conclusive presumption. Many points of law ar& facts 60 clearly proved that judges will not permit juries to find the contrary. The legal grounds of these exceptions are obvions. �A passage from Kent, 3 Com. 498, whioh is often cited in favor of bonafide purehasers, will be found, on examination, as I couceive, to refer to a rule in equity. The two cases which he cites on that side are from chancery, and he would not have laid down a general rule of title without a mueh more careful examination of the authorities. See Copland v. Bosquet, 4 Wash. C. G. 688, where Mr. Justice Washington deale with the first case cited by Kent, and denies that there is Buch a rule at oommon law ; and the opinion of Loft, J., in Ballarà v. Burgett, 40 N. Y. 314, where the commentary and the cases are fuUy considered. See, too, on the general ques- tion, besides the authorities already referred to, Holmes' note to 3 Kent Com. 498, (12th Ed. ;) Perkins' note {d) to Benja- min on Sales, § 320, (2d Am. Ed.;) Clarh v. Wells, 45 Yt. 4; Duncan v. Stone,là. 118; Dunbar v. Bawhs, 28 Ind. 225; Griffin v. Push, 44 Mo. 412; Bidgeway v. Kennedy, 52 Mo- 24; Bailey v. Harris, 8 lowa, 331; Roh'mson v. ChapUne, 9 lowa, 91; Baker v. Hall, 15 lowa, 277; Sumner v. McFarlan, 15 Kan. 600. �I have omitted many decisions in which the contract con- tained words to express a baihnent, such as lending, or let- ting to hire with a right to buy, beoause some courts hold ����