Sale for Illegal Purpose. A sale of goods for the purpose of smuggling is invalid; 3 Term 454 ; but not when a foreigner sold the goods abroad having no concern in the smuggling; 1 Cowp. 34. The mere knowl edge of the vendor that the goods sold would be used for an illegal purpose does not render the sale illegal ; Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205 ; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154. See Benj. Sales, § 511, n.
Where a buyer is insolvent and has no Intention to pay for goods, the sale may be avoided by the seller ; Donaldson v. Far well, 93 U. S. 631, 23 L. Ed. 993; Wright v. Brown, 67 N. Y. 1; but the mere knowl edge on the buyer's part that he will be unable to pay for them, will not alone form a fraudulent intent; Tiedem. Sales, § 170; there must be other facts of a suspicious nature, such as re-selling them at a reduced price ; id. In Pennsylvania, it is not enough to show that the buyer was insolvent and did not intend to pay for the goods ; some artifice must be shown ; Smith v. Smith, 21 Pa. 367, 60 Am. Dec. 51.
A Massachusetts act of 1884 makes it a crime for any one to sell any property under representation that anything other than what is specifically stated to be the subject of the sale is to be delivered, etc., as a part of the transaction. In a case under this act it appeared that a retail dealer in tobacco of fered to each purchaser a selection of a photograph among a number exposed for his choice. A conviction under this act was set aside upon the ground that what was sold in this case was specifically understood to be the subject of the sale. In a case under a like act in New York, the buyer purchased coffee and received a present as a part of the transaction. It appeared that the presents were lying in full view of the purchasers who could make their choice if they bought as much as two pounds of coffee. The act was held to be unconstitutional ; People v. Gill son, 109 N. Y. 389, 17 N. E. 343, 4 Am. St. Rep. 465. A Maryland act was held to be unconstitutional only so far as related to transactions which were dependent upon chance; Long v. State, 74 Md. 565, 22 Atl. 4, 12 L R. A. 425, 28 Am. St. Rep. 268. See LOTTERY.
A New York act (1898) provides that a seller who publicly advertises statements with respect to quantity, quality, value, price, method of production, or manufacture, which are untrue or calculated to mislead, shall be guilty of a misdemeanor.
As to the interpretation of the Sales Act, see Williston on Sales, p. 1031 et seq.
See Williston on Sales, where the whole subject is very ably treated.
See ACCEPTANCE; CONTRACT; DELIVERY; PARTIES; STOPPAGE IN TRANSITU; WARRAN TY; EARNEST; FRAUDS, STATUTE OF; CON SIDERATION; JUDICIAL SALES; PRICE; GOODS, WARES AND MERCHANDISE; MISREPRESENTA TION; FRAUD; DECEIT; MISTAKE; NOTE OR MEMORANDUM; SAMPLE; SEEDS; MORTGAGE; ROLLING STOCK ; TIMBER ; SATISFACTION, CON TRACTS TO.
Real Estate. The above rules apply to sales of personal property. The sale of real estate is governed by other rules. When a
contract has been entered into for the sale of lands, the legal estate in such lands still re mains vested in the vendor, and it does not become vested in the vendee until he shall have received a lawful deed of conveyance from the vendor to him ; and the only rem edy of the purchaser at law is to bring an ac tion on the contract and recover pecuniary damages for a breach of the contract. In equity, however, after a contract for the sale, the lands are considered as belonging to the purchaser, and the court will enforce his rights by a decree for a specific performance ; and the seller will be entitled to the pur chase-money ; Wms. R. P. 127. See SPECIFIC PERFORMANCE.
In general, the seller of real estate does not guarantee the title; and if it be desired that he should, this must be done by inserting a warranty to that effect.
Section 3 of the statute of frauds provides that no interest in land shall be created un less by deed or note in writing signed by the party or his agent, authorized by writing, or by act of operation of law.
The question whether sales 'of standing timber involves any interest in land has been much mooted. The majority of eases seem to support the following propositions: 1. Where the vendor has expressly stipulated that the trees may remain standing on the land a given number of years if the purchas er elects. Here, as they derive more or less growth and increase from the soil, there is some reason to hold that the sale involves an interest in land. It has in fact been consid ered a sale, not only of the trees as they then are, but as they will be at the end of the stipulated period with all the addi tions to them subsequently acquired by the soil. See Vorebeck v. Roe, 50 Barb. (N. Y.) 302; Kingsley v. Holbrook, 45 N. H. 313, 86 Am. Dec. 173. 2. Where the trees are to stand for an indefinite time and to be severed solely at the pleasure of the buyer, the statute of frauds requires a written agreement. See Buck v. Pickwell, 27 Vt. 157.
Under the civil law, in a contract of sale the seller was not bound to make the buyer absolute master (dominos) of the thing sold, as he would have been in a stipulation. What he was bound to do was this: 1. To deliver the thing itself (prcestare, tradere), to give free and undisturbed possession of it (possessionem vacuam tradere), and to give lawful possession of it (priestare, licere ha bere). 2. If the buyer was disturbed in his possession by the real owner (evictio), to rec-' ompense him for what was lost. 3. se cure the buyer against secret faults; if such faults were discovered, either compensation might be claimed by an actio cestimatoria, re ducing the price to a greater or less amount, according as the seller had or had not knowl edge of the defect, or at the option of the buyer, the contract might be rescinded by an action actio redhibitoria, and the thing re turned (which was termed redhibitio: red hibere est facere ut rursus itabeat venditor quod habuerat). Just. Inst. (8th Ed.) 365.