Page:Federal Reporter, 1st Series, Volume 9.djvu/490

THE WALTER M. FLEMING. 475, �the boat was delivered to him, since which the libellant bas seen nothing of the boat or the buyer until the commeiicenient of thia suit, and bas received no part of the purchase money except the $150. Wbat the foll consideration was agreed to be libellant does not recollect, but he thinks it waa over $500, and he thinks that no bill of sale of the boat was ever given by him. �Nothing of all this appears in the libel, which contains no allusion to either Charles or Cornelius M. Vanolinda, and makes one Wright the party defendant, with wbom it is evident the libellant bas no con- , troversy. But assuming the libellant's recollection to be aocurate, which evidently it is not in all respects, and assuming that the state of facts sought to be made by the libellant's testimony is admissible under his libel, his action cannot be maintained ; for, according to the libellant's testimony, at the expiration of 30 days from his deliv- ery of the boat to Charles Vanolinda, in July, 1874, he had the right to resume possession of the boat, and from that time to this he bas made no attempt to exercise this right. The fact conceded in this case, that no bill of sale of the boat was given at the time of the delivery of the boat to Charles Vanolinda, is deprived of much of its ordinary signiucance as bearing upon the question whether the title was intended to be transferred by the circumstance that the libellant bas no bill of sale. The only bill of sale proved is from William D. Callister to the libellant and one Mr. William H. Crennel. The libel- lant, doubtless, became possessed of Crennel's interest in the boat, but he bas no bill of sale from Crennel. Assuming, however, that the omission to deliver a bill of sale to Charles Vanolinda, under these circumstances, be sufficient to compel the conclusion that there was no intention to part with the title to this boat at the time of the bar- gain with Charles Vanolinda, still it must in equity be held that any right to reclaim possession of the boat, upon failure of the buyer to perform his agreement, has been waived by thia long and unexcused delay of some seven years. And this, certainly, when, as the claim- ant bas proved, the boat was during this long period running upon the Erie canal, and both Charles Vanolinda and the present pos- sessor, Cornelius Vanolinda, had been seen by the libellant ou more than one occasion without any demand of the possession ever being made, and when no obstacle existed to prevent the libellant from resuming the possession at any time. It was the libellant's duty, if he intended to reclaim possesion of the boat, to do so within a reason- able time after the default ; and he cannot be permitted to wait seven years, and then without demand apply to have the court put him in ��� �