On petition of the defendant Hort for rehearing. The petitioning defendant answered denying each and every allegation of the complaint, and that is all. He does not claim to stand in the position of a subsequent purchaser in good faith for a valuable consideration of the property. He does not pretend in pleading that he has acquired any right to the property by purchase from Martenstein & Co.; nor from Garthwaite; nor 'does he claim to be an attaching creditor. As the case stands *378upon thq record, the only question is, did the plaintiff have the right to the possession of the property at the time the action was commenced as between him and Garthwaite, or a third person who became possessed of it without right. Garthwaite assumed to pledge it before he owned it and while it was in the warehouse in possession of the warehouseman as the agent of Martenstein & Co. Garthwaite, with the wrongful concurrence of Loring, the warehouseman’s clerk, attempted to make a delivery of the flour to the plaintiff, who upon the strength of what was done loaned to Garthwaite eight thousand dollars. Now it is said on petition for rehearing that the delivery was ineffectual because the property did not belong to Garthwaite, and that a new delivery after the latter became the owner of it, or a taking possession of it by the plaintiff after that time, was necessary before it could become a pledge in the hands of the plaintiff. Counsel say : “ By the common law a sale of goods, whether absolute or conditional, not belonging to the vendee at the time, does not pass the legal title, nor will it pass thereby until the vendor acquires title, and thereafter ratifies or gives effect to the original invalid sale by some new act intended to vest title in the vendee. The taking possession of the property by the vendee, with the sanction of the vendor, after such title has been acquired, will, according to the preponderance of authority, be a sufficient ratification for that purpose.” In the very nature of things the vendor must have the title before he can transfer it; but if he undertakes to transfer the title to personal property which he does not own, in a manner that would be effectual if he owned it, and afterwards acquires the title, he is estopped from saying the sale was invalid and void because he had no title when he assumed to own and transfer it. This 'is a well settled doctrine of the law ; and if it by any means appears in such a case that the vendor made a contract'of sale of personal property and placed it in the possession of the vendee, and afterwards, for the first time, obtained the title to it, we apprehend a new delivery or other expressed act of ratification of what he had attempted to do *379would not be necessary to invest the vendee with the title. To require, under such circumstances, a new delivery or ratification of the sale, would be to require a vain thing. The vendee, being in possession, is entitled to retain the property after the vendor acquires the title, whether the vendor sanctioned the original transfer or otherwise. The same rule applies to cases of pledges.
Many of the authorities to which the defendant has referred, • in his petition for a new hearing, arose upon contracts of mortgage or sale, unaccompanied by a delivery of the property, and consequently are distinguishable from this case. We deem it unnecessary to examine them in detail. We are of the opinion the judgment heretofore pronounced should stand.
Rehearing denied.