The plaintiff brought his action of trover in three counts :—
1st. For the alleged conversion of three hundred and eighty bags of meal belonging to the plaintiff.
2d. For the conversion of seven hundred and fifty bags of meal belonging to the plaintiff and defendant as tenants in common.
3d. Alleging the meal to belong to the plaintiff and defendant and one John T. Gill as tenants in common.
It appears from the finding of facts by the judge who tried the cause in the Superior Court, that the defendant, being the owner of a lot of bags of meal consisting of between five and six hundred, on the 10th of January, 1867, sold the lot to John'T. Gill at the price, of $2.40 per bag. The property was then in a schooner lying at Long Wharf, in New Haven. Afterwards, on the 25th of January, Gill sold to the plaintiff five hundred of these bags still remaining in the schooner. Of this sale the plaintiff notified the defendant, and the defendant gave the plaintiff authority immediately to remove the bags he had purchased. The plaintiff however told the defendant that he was busy that day, but in a few days would send for them. The plaintiff a few days after this conversation, to wit, on the 4th of February, gave Gill his note, which was paid at maturity, for the price of the meal. On the 5th of February the plaintiff received one hundred and forty of the bags, and then took no more, because the defendant said the rest could not be removed until some corn, for which the bags were used as a bulk-head, had first been taken out. Gill became notoriously insolvent on the 7th of February. The defendant, upon due demand made by the plaintiff, *419refused to deliver the remaining three hundred and sixty bags of meal and for such refusal this action was brought. The sale to Gill was for cash, and the defendant had not been paid for the meal by him so sold.
The judgment in the Superior Court was for the plaintiff, and the defendant seeks for a new trial.
The defendant’s counsel claim that the title did not pass to Gill, for that the counting of the ba^s was an act remaining to be done as between the defendant and Gill ; and they also claim a right to' retain for the unpaid price. As between the defendant and Gill these claims would perhaps be well founded, but we think they cannot prevail against the plaintiff upon the circumstances disclosed in the finding. The defendant gave the plaintiff authority to make immediate removal of the five hundred bags without intimating that Gill’s title was not perfect, and thus left the plaintiff to pay the price to Gill. The defendant also treated the meal as belonging to the plaintiff, by delivering one hundred and forty bags, and inducing hinjyjo arfow the residue to remain without removal, to^ accommÜBRfe the defendant as a bulkhead for his corn, intimating still no infirmity in the title of Gill.
We think it is too late for the defendant to call Gill’s title in question after having thus treated it as perfect and complete. The Superior Court very properly regarded the defendant as estopped from setting up the claims now made. If authority is needed for a point so plain it may be found in Stoveld v. Hughes, 14 East, 308.
But the point most strenuously pressed by the defendant’s counsel is this, that admitting Gill’s title to have been such that the defendant cannot be permitted to deny it, still, the plaintiff’s title is defective. He bought of Gill five hundred out of a larger number of bags, and with the exception of the hundred and forty delivered, the remaining three hundred and sixty wore not separated from the mass, and they insist that until such severance the title did not pass ; that until separation the contract was merely executory, and that the title remained in Gill and therefore remained subject to the plaintiff’s lien.
*420This claim comes with somewhat an ill grace from the defendant, inasmuch as it appears that the separation would have been made on the 5th of February had it not been on his request and for his convenience postponed until the bags should be no longer needed as a bulk-head for his corn. But the same considerations of estoppel which apply to the other branch of the case do not apply here, and we must therefore proceed to examine with some care the propositions of law on which the claim of the defendant now under consideration is founded.
The Superior Court having found'the issue for the plaintiff we cannot grant a new trial unless some point of law was wrongly decided. Upon the facts found we must regard the title as having passed from Gill to the plaintiff, unless the law is so that until and without the severance of the five hundred bags from the bulk of five or six hundred the title could not pass. The evidence detailed would warrant the Superior Court in finding that the parties intended an executed sale. The price was paid, and nothing remained to be done, as between buyer and seller, to complete the sale. The plaintiff was to take his meal when he wanted it, and as he should want it. Notice of the sale was given to the defendant, in whose custody the property was, who attorned to the plaintiff.
The case therefore depends upon the inquiry whether it be, as the defendant’s counsel contend, an absolute rule of law that, upon the sale of a portion of a larger bulk, the contract remains in judgment of law executory until the portion sold is severed and separated for the purchaser from the mass. It must be conceded that this question is not free from difficulty, and that in regard to it respectable authorities differ.
In regard to a large class of cases the law is indisputably as the defendant claims. If I sell ten out of a drove of one hundred horses, to be selected, whether by myself or by the vendee, no title can pass until the selection is made. This rule prevails wherever the nature of the article sold is such that a selection is required, whether expressly provided for *421or not by the terms of the contract. If the articles differ from each other in quantity or quality or value, the necessity of a selection is clearly implied. In all such cases the subject matter of the contract cannot be identified until severance, and the severance is necessary in order that the subject matter of the contract may be made certain and definite.
But where the subject matter of the sale is part of an ascertained mass of uniform quality and value, no selection is required, and in this class of 'cases it is affirmed by authorities of the highest character, that severance ’is not, as matter of law, necessary in order to vest the legal title in the ven-dee to the part sold. The title may and will pass if such is the clear intention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title.
The leading case on this subject in England is that of Whitehouse et al., Assignees of Townsend v. Frost, 12 East, 614. That case has been the subject of some adverse criticism, but in respect to the point under consideration it seems to us to have been properly decided. The sale to the bankrupt was of ten tons of oil, in a cistern containing forty tons. There was no severance of the ten tons from the remaining thirty, and the court held that the title vested in the bankrupt, so that his assignee could maintain an action of trover. The case was elaborately discussed at the bar and by the bench, and Blano, J. says, — “ Something it is said still remained to í>e done, namely, the measuring off the ten tons from the rest of the oil. Nothing however remained to be done to complete the sale. The objection only applies where something remains to be done as between buyer and seller for the purpose of ascertaining either the quantity or the price, neither of which remained to be done in this case.”
Nothing was said by the counsel or the court in the case of Whitehouse v. Frost about a tenancy in common being created by the contract. In a subsequent case, Busk v. Davis, 2 Maule & Selw., 397, the suggestion is made that the sale was of an undivided quantity of the oil, as it undoubtedly *422was, but though the property was intermixed with other property of the same kind, the title was held to be in severalty for the practical purpose of being protected by an action of trover, and it is such a property as includes the ordinary risk of ownership, which indeed would be true whether the title were in common or in severalty.
In the case of the oil it was the intention of the vendors to confer on the vendee a perfect right at any time to take his ten tons. . The vendee was to have the same right to the ten tons that the vendors retained in the remaining thirty tons ; and conceding such to have 'been the contract, why should the law disappoint that intention by an arbitrary rule of law against it ?
Among the earliest cases which we find on this subject in this country is that of Pleasants v. Pendleton, reported in 6 Randolph’s Virginia R., 478. The sale was of a certain number of barrels of flour, part of a larger parcel of such barrels, of the same brand and of equal value. The contracp was complete in every respect except the separation of the barrels sold. The court held that the title passed, one of the judges saying, “ These are not portions of a larger mass to be separated by weighing and measuring, but consist of divers separate and individual things, all precisely of the same kind and value, mixed with other separate and individual things of the same kind and between which there is no difference.”
The leading case on this subject in the state of New York is that of Kimberly v. Patchin. The matter is elaborately discussed and the conclusion is well expressed in the reporter’s syllabus: — “ Upon a sale of a specified quantity of grain its separation from a mass indistinguishable in quality or value with which it is included, is not necessary to pass the title, when the intention to do so is otherwise clearly manifested.” 19 New York R., 330. Judge Comstock, in giving the opinion of the court, remarks: — “ It is not necessary to decide whether the parties to the sale became tenants in sommon. If a tenancy in common arises in such cases it must be with some peculiar incidents not usually belonging to that species of ownership.”
*423In Waldron v. Chase, 37 Maine R., 414, it was decided that where the owner of a large quantity of corn in bulk sells a certain number of bushels therefrom and receives his pay, and the vendee takes away a part, the property in the part sold vests in the vendee, although it is not measured or separated from the heap.
In Pennsylvania (7 Penn. S. R., 140, Hutchinson v. Hunter,) and in Ohio, (7 Ohio, 467, Woods v. McGhee,) the courts seem to hold that severance from the mass is absolutely essential to the vesting of title in the vendee. The opinion expressed in those cases is strongly in that direction, and yet the cases themselves would be decided by us precisely as they are decided by those courts, for in the Pennsylvania case it appears that the subject of sale was part of a bulk .of unequal quantities and values, and in the Ohio case the barrels of flour composing the bulk varied in value from twenty-five to fifty cents per barrel.
If in the case we have under our consideration any such fact appeared we should decide in favor of the defendant, for our decision is based upon the fact that the bags of meal do not appear to have been in any respect different one from another.
The subject we are discussing seems to have perplexed the courts of Massachusetts. In the case of Scudder v. Worster, 11 Cushing, 673, severance seems to be regarded by the court as essential in cases of this kind to the transfer of the title, and yet in a somewhat more recent case of Weld v. Cutler, 2 Gray, 195, it was held that upon a mortgage of a portion of a larger mass of coal, the title passed to the mortgagee as against an assignee in bankruptcy of the mortgagor without and before separation, where the whole mass was put into the possession of the mortgagee to enable him to separate his part from the bulk. Such a delivery is so decided evidence of an executed mortgage as to leave no doubt of the intention of the parties, and yet until the separation is made that act remains to be done, and the decision recognizes the title of the mortgagee as valid and executed in him prior to the severance and while the property is intermixed and in com*424mon, and thus seems to recognize the doctrine established in Virginia, New York and Maine, that such a title is possible in law. If it be in law possible, then its existence in a particular case must depend upon the clearly expressed wish and intention of the parties.
In view of the authorities which we have commented upon and of the reason of the thing we have come to the conclusion — 1st, that there is no legal bar which prevents the transfer of the title until actual separation of the five hundred bags from the mass; and 2d, that the facts in the case before us warrant the Superior Court in finding that the parties intended that the title should pass. The fact that the contract was executed on the plaintiff’s part by the execution and delivery of his note, since paid, for the price, is very significant. There is no indication in any part of the case of any thing executory remaining to be done by Gill. If the meal had been destroyed by fire and Gill had remained solvent, we think the plaintiff could not have successfully sued Gill for non-delivery as upon an executory agreement to count out, separate and deliver the five hundred bags. Gill’s answer would be that he had done every thing that he had contracted to do — every thing which it was expected hé should do. He had placed the property within the control of the plaintiff, who had assumed the control by taking away a part and allowing the residue to remain in the schooner for the defendant’s convenience.
The title then we think passed, whether in severalty or in common it is unnecessary to decide, for there are counts in .the plaintiff’s declaration adapted to either alternative. If there were evidence by express words or by fair inference of an intention on the part of Gill to confer, and on the part of the plaintiff to take, a joint title in the mass of the bags in the proportion of five hundred to the whole number, the case would be entirely' free from the embarrassments which have been under consideration. It is of course competent for the owner of six hundred bags of meal of equal quality and value to sell five-sixths of them, and to transfer the title to the *425five-sixths without severance. In such case the ultimate severance, if it ever takes place, is not as between the parties as vendor and vendee, but between them as tenants in common after the full completion of the sale. In such case after the sale the parties are tenants in common, with all the incidents of that relation.
But there is no evidence that Gill and the plaintiff intended a tenancy in common, unless such a relation is the necessary consequence of holding that the title passes while the property remains intermixed and unseparated. But if the intention of the parties is clear that the title shall be transferred, we should hold that such intention must be carried into effect, and if the only mode of accomplishing the purpose of the parties is through the medium of a tenancy in common, then such tenancy is created. The authorities however do recognize a species of title in severalty to a definite portion of property remaining intermixed with other property of the same identical kind. Thus in Gardner v. Dutch, 9 Mass., 427, the action was replevin for seventy-six bags of coffee which were lying in common with other bags belonging to third persons. These seventy-six bags were not distinguished by any particular marks, or by a separation of them in any manner from the rest of the coffee. The court say: “ If the plaintiff was in fact tenant in common he could not maintain replevin; but he was not tenant in common. Although the bags belonging to him bad no distinguishing marks, he might have taken the number of bags and the quantity of coffee to which he was entitled' by his own selection while they remained in the hands of Welman and Ropes.” If then the title of the plaintiff was in a sense common, yet it was only quasi joint; a temporary community only was contemplated. The plaintiff was entitled to take immediate possession of his portion without let or hindrance from his companion in the ownership of the mass. In the case of Whitehouse v. Frost it was held that this title is such that the plaintiff might maintain trover for the conversion of his property against his companion upon proof of mere demand and *426refusal to deliver to the plaintiff his share, which could not be done in ordinary cases of joint tenancy.
A new trial is not advised.
In this opinion the other judges concurred.