hold and retain the residue of the mortgaged lands as security for the money remaining due on the said mortgage: Now this indenture witnesseth, that the said party of the first part, in pursuance of the said agreement, and in consideration of to him duly paid at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, released, quitclaimed, and set over, and by these presents does grant, release, quitclaim, and set over, unto the said party of the second part, all that part of the said mortgaged land (here describe carefully and accurately all that part of the mortgaged land which it is intended to release, distinguishing it from that which is retained).

TOGETHER with the hereditaments and appurtenances thereto belonging, and all the right, title, and interest of the said party of the first part, of, in, and to the same, to the intent that the lands hereby conveyed may be discharged from the said mortgage, and that the rest of the lands in the said mortgage specified may remain to the said party of the first part as heretofore. To have and to hold the lands and premises hereby released and conveyed to the said party of the second part, and his heirs and assigns, to his and their only proper use, benefit, and behoof, for ever, free, clear, and discharged of and from all lien and claim under and by virtue of the indenture of mortgage aforesaid.

IN WITNESS WHEREOF, The said party of the first part has hereunto set his hand and seal, on the

Executed and delivered in presence of

day of

in the year

(Signature.) (Seal.)

STATE OF

88.

COUNTY OF

On the

hundred and

day of
in the year one thousand eight
before me personally came
who is

known to me to be the individual described in, and who executed, the foregoing instrument, and acknowledged that he executed the same as his free act and deed.

by and between (name, residence, and occupation of the mortgagee), the owner and holder of a certain promissory note (or bond) for the principal Bum of dollars, given by (name of mortgagor), and secured by a mortgage of certain real estate in and State of

recorded in

in the county of

dated

day

A.D. 18

and

registry of deeds, for the county of

lib.

fol.

party of the first part, and the said (name

of mortgagor), party of the second part,

WITNESSETH, That the said parties, for themselves and their representatives, hereby mutually agree that the time for the payment of the principal of said note and mortgage debt shall be and the same is hereby extended for the term of years from the

day of

A.D. 18 and that the same is to bear interest from said date,
per cent per annum, payable on the

at the rate of
day of
and the
said principal sum shall be fully paid.

day of

in

every year, until

And the said party of the second part hereby covenants and agrees that he will not require the holders of said note and mortgage to receive payment of said mortgage debt during said extended term; that he will punctually pay the interest now due, and to grow due thereon, at the times and at the rate aforesaid; that he will keep the mortgaged premises in good repair, and insured against fire, and the taxes thereon duly paid, according to the provisions of said mortgage, and that at the expiration of said extended term he will pay the said mortgage debt, with all interest then due thereon.

It is expressly understood and agreed that nothing herein contained shall be construed to impair the security of said party of the first part, or his executors, administrators, or assigns, under said mortgage, or to affect or impair the lien on the real estate therein described, which he has by virtue of said mortgage, nor affect or impair any rights or powers which he may have under the said note and mortgage, for the recovery of the mortgage debt, with interest, in case of non-fulfilment of this agreement, or of any of the provisions hereof, by said party of the second part.

IN WITNESS WHEREOF, The said parties have hereunto set their hands and seals, the day and year first above written.

(Signature.)

above instrument to be his (or their) free act and deed.

Before me,

CHAPTER VI.

PURCHASE AND SALE OF GOODS AND CHATTELS.

SECTION I.

WHAT CONSTITUTES A SALE.

It is important to distinguish carefully between a sale and an agreement for a future sale. This distinction is sometimes overlooked; and hence the phrase "an executory contract of sale," that is, a contract of sale which is to be executed hereafter, has come into use; but it is not quite accurate to speak of this as if it were a sale. Every actual sale is an executed contract, although payment or delivery may remain to be made. There may be an executory contract for a sale, or a bargain that a future sale shall be made; but such a bargain is not a present sale, nor does it confer upon either party the rights or the obligations which grow out of the contract of sale.

A sale of goods is the exchange thereof for money. More precisely, it is the transfer of the property in goods from a seller to a buyer, for a price paid, or to be paid, in money. It differs from an exchange, in law; for that is the transfer of chattels for other chattels; while a sale is the transfer of chattels for money, which is the representative of all value.

Here we must pause to speak of the legal meaning of the word property." It is seldom or never used in the law, as it is in common conversation, to mean the things themselves which are bought, or sold, or owned. Because in law it means the ownership of the things, and not the things themselves.

If a bargain transfers the property in (which means the ownership of) the thing to another person for a price, it is a sale; and if it does not transfer the property, it is not a sale; and, on the other hand, if it be not a sale, it does not transfer the property. As soon as a thing is sold, the buyer owns it, wherever it may be. And to constitute a sale at common law, all that is necessary is the agreement of the buyer and the seller that the property in (or ownership of) the subject-matter shall then pass from the seller to the buyer for a fixed price.

The sale is made when the agreement is made. The completion of the sale does not depend upon the delivery of the goods by the seller, nor upon the payment of the price by the buyer. By the mutual assent of the parties to the terms of the sale, the buyer acquires at once the property and all the rights and liabilities of property; so that, in case of any loss or depreciation of the articles purchased, the buyer will be the loser; and he will be the gainer by any increase in their value.

It is, however, a presumption of the law, that the sale is to be immediately followed by payment and delivery, unless otherwise agreed upon by the parties. If, therefore, nothing appears but a proposal and an acceptance, and the vendee departs without paying or tendering the price, the vendor may elect to consider it no sale, and may, therefore, if the buyer comes at a later period and offers the price and demands the goods, refuse to let him have them. But a credit may be agreed on expressly, and the seller will be bound by it; and so he will be if the credit is inferred or implied from usage or from the circumstances of the case. And if there be a delivery and acceptance of the goods, or a receipt by the seller, of earnest, or of part payment, the legal inference is that both parties agree to hold themselves mutually bound by the bargain. Then the buyer has either the credit agreed upon, or such credit as from custom or the nature or circumstances of the case is reasonable. But neither delivery nor earnest nor part payment is essential to the completion of a contract of sale. They only prevent the seller from rescinding the contract of sale without the consent of the purchaser. Their effect upon sales under the provisions of the Statute of Frauds will be considered in the chapter on that subject.

No one can be made to buy of another without his own assent. Thus, if A sends an order to B for goods, and C sends the goods, he cannot sue for the price if A repudiates the sale, although C had bought B's business.

The seller (if no delivery with credit for the price is agreed on) has a right to retain possession of the property sold until the price is paid. This right is called a lien, which means the right of retaining possession of property until some charge upon it, or some claim on account of it, is satisfied. It rests, therefore, on possession. Hence the seller (and every other person who has a lien) loses it by voluntarily parting with the possession or by a delivery of the goods. And it is a delivery for this purpose if he delivers a part, without any purpose of severing that part from the remainder; or if he make a symbolical delivery which vests this right and power of possession in the buyer, as by the delivery of the key of a warehouse in which they are locked up.

If the seller delivers the goods to the buyer, as he thereby loses his lien, he cannot afterwards, by virtue of this lien, retake the goods and hold them. But if the delivery was made with an express agreement that non-payment of the price should revest the property in the seller, this agreement may be valid, and the seller can reclaim the goods from the buyer if the price be not paid.

If the buyer neglect or refuse to take the goods and pay the price within a reasonable time, the seller may resell them on notice to the buyer, and look to him for the deficiency by way of damages for the breach of the contract. The seller, in making such resale, acts as agent or trustee for the buyer; and his proceedings will be regulated and governed by the rules usually applicable to persons acting in those capacities; and the principal one of these is, that he will be held to due care and diligence, and to perfect good faith.

Certain consequences flow from the rules and principles already stated, which should be noticed. Thus, if the party to whom the offer of sale is made accepts the offer, but still refuses or neglects to pay the price, and there are no circumstances indicating a credit, or otherwise justifying the refusal or neglect, the seller may, as we have said, disregard the acceptance of his offer, and consider the contract as never made, or as rescinded. It would, however, be proper and prudent on the part of the seller expressly to demand payment of the price before he treated the sale as null; and a refusal or neglect would then give him at once a right to hold and treat the goods as his own. So, too, if the seller unreasonably neglected to deliver the goods sold, and especially if he refused to deliver them, the buyer thereby acquires the right to consider that no sale was made, or that it has been avoided (or annulled). But neither party is bound to exercise the right thus acquired by the refusal or neglect of the other, which is a right to rescind or annul the sale, but may consider the sale as complete; and the seller may sue the buyer for non-payment, or the buyer may sue the seller for non-delivery.

If the seller has merely the right of possession, as if he had hired the goods; or if he has the possession only, as if he had stolen them, or found them, he cannot sell them and give good title to the buyer against the owner; and the owner may therefore recover them even from an honest purchaser who was wholly ignorant of the defect in the title of him from whom he bought them. This follows from the rule above stated, that only he who has in himself a right of property can sell a chattel, because the sale must transfer the right of property from the seller to the buyer. The only exception to the above rule is where money, or negotiable paper transferable by delivery (which is considered as money), is sold or