This is a suit in detinue by the vendor against the subpurchaser of an alleged fraudulent vendee of the plaintiffs for the recovery of a mule. The cause was partly tried on an agreed statement of facts, and, the evidence being without dispute as to the alleged fraud of the original vendee, the court, at the request of the plaintiffs in writing, gave the general affirmative charge to find for the plaintiffs.
It is evident that the general charge to find for the plaintiff was given upon the theory that the title to the property had never passed out of the plaintiff. The fraud consisted in a misrepresentation by the original vendee of his personal identity. The undisputed facts show that all of the terms of the sale were agreed upon between the plaintiffs and their vendee, and the possession of the property was delivered to the vendee, and his notes were taken for the purchase price payable to the plaintiffs, together with a mortgage to secure the same on the property sold. The adjudications of the courts on the question as to whether, under such a state of facts, the title to the property passed out of the vendors, are not in harmony. It seems, however, that the better established doctrine is that under such facts the title *501would pass. In Benjamin on Sales (Bennett’s 7th Ed. 1899) § 433, it is said: “It was not until 1866 that it was finally settled whether the property in goods passes by a sale which the vendor has been fraudulently induced to malee. The cases Stevenson v. Newmham, in Exchequer Chamber, and of Pease v. G-loahec, in the Privy Council, confirming the principles asserted by the Exchequer in Kingsford v. Merry, taken in connection with the decision of the House of Lords in Oakes v. Turquand, leave no room for further question. By the rules established in these cases, whenever goods are obtained from their owner by fraud, we must distinguish whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part. In other words, we must ask Avhether the owner intended to transfer both the property in and the possession of the goods to the person guilty of the fraud, or to deliver nothing more than the bare possession. In the former case there is a contract of sale, however fraudulent the device, and the property passes; but not in the latter case. In the former case the contract is voidable at the election of the vendor, and not void ab initio. It follows, therefore, that the vendor may affirm and enforce it, or may rescind it. He may sue in assumpsit for the price, and this affirms the contract, or he may sue in trover for the goods or their value, and this disaffirms It. But in the meantime, and until he elects, if his vendee transfer the goods in whole or in part, whether the transfer be of a general or of a special property in them, to an innocent third person for a valuable consideration, the rights of the original vendor avüI be subordinate to those of such innocent third person. If, on the contrary, the intention of the vendor was not to pass the property, but merely to part with the possession of the *502goods, there is no sale, and he who obtains such possession by fraud can convey no property in them to any third person, however innocent, for no property has passed to himself from the true owner.”
The case of John Edmunds et al. v. Merchants’ Dispatch & Transportation Co., 135 Mass. 283, upon this question, seems to be directly in point. The principle also finds support in the following cases: Barker v. Dinsmore, 72 Pa. 427, 13 Am. Rep. 697; McCrillis v. Allen, 57 Vt. 505; Alexander v. Swachhamer, 105 Ind. 81, 4 N. E. 433, 5 N. E. 908, 55 Am. Rep. 180; Peters Box & Lumber Co. v. Lesh, 119 Ind. 98, 20 N. E. 291, 12 Am. St. Rep. 367; Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439. This principle is recognized in our own adjudications as to the question of farad and its effect in contracts of sale of goods. — Wilk v. Key, Simmons & Co., 117 Ala. 285, 23 South. 6, where other cases are cited. In the case before.us the evidence without dispute showed a sale of the property, in contradistinction to a mere parting of possession of it.
Our conclusion is that the trial court erred in giving the general charge for the plaintiff, and for this error the judgment appealed from must he reversed. The giving of the general charge constitutes the only assignment of error in the record.
Reversed and remanded.
Tyson, C. J., and Anderson and McClellan, JJ., concur.