47 Am. Jur. Sales § 924. See annotation in 87 A.L.R. 942; cf. Uniform Conditional Sales Act § 13. The transfer by the conditional vendee of his interest is, of course, subject to the rights of the conditional vendor, but the transferee acquires whatever right the conditional vendee has. Hatch v. Lamos, 65 N. H. 1, 17 A. 979, 4 L.R.A. 404. It follows from the foregoing, and it has been held accordingly, that where property which is the subject of conditional sale is sold to satisfy the vendor's lien, the mortgagee, to whom the conditional vendee has mortgaged his interest, is entitled to the balance of the proceeds after deducting the reasonable expenses incident to the sale.
The legal title to the property did not and by the terms of the contract was not to vest in the father until the purchase price was paid. Weeks v. Pike, 60 N.H. 447; Adams v. Lee, 64 N.H. 421; Hatch v. Lamos, 65 N.H. 1; Cutting v. Whittemore, ante, p. 107. The father failed to make any payments under the contract, and the defendant, his donee, although requested, declined to make them or to return the clothing.
The defendant, however, contends that the conditional vendee had no interest in the property which he could mortgage or assign, and that the plaintiff, or Chellis, acquired no interest therein by the purchase of the Barney mortgage. But it has been held that the conditional vendee, while in possession under the contract of sale, has an interest in the property that he may give away (Hatch v. Lamos, 65 N.H. 1); that he may sell (Bailey v. Colby, 34 N.H. 29; Nutting v. Nutting, 63 N.H. 221); that he may mortgage (Chase v. Ingalls, 122 Mass. 381; 1 Mech. Sales, s. 588); that his creditors may attach (Hervey v. Dimond, 67 N.H. 342; Fife v. Ford, 67 N.H. 539; Bingham v. Vandergrift, 93 Ala. 283); that it will pass to his assignee in insolvency (Adams v. Lee, 64 N.H. 421); and that a performance of the condition of the sale after a transfer of the vendee's interest, either by the vendee or his assignee, will vest the title in the assignee without further action by the vendor. Hatch v. Lamos, supra. It follows, therefore, that by the purchase of the Barney mortgage Chellis acquired the interest of Nutting.