Straus v. Rothan

• Decision Date: 22 December 1890
• Citation: 14 S.W. 940,102 Mo. 261
• Parties: Straus, Appellant, v. Rothan et al
• Court: Missouri Supreme Court

14 S.W. 940

102 Mo. 261

Straus, Appellant, v. Rothan et al

Supreme Court of Missouri

December 22, 1890

Certified from St. Louis Court of Appeals.

Affirmed.

Fred. Wislizenus for appellant.

(1) Revised Statutes, 1879, section 2353, does not create a vendor's lien. Norris v. Brunswick, 73 Mo. 256; Haworth v. Franklin, 74 Mo. 106. The lien theory rests wholly on a dictum in Parker v. Rodes, 79 Mo 91. (2) Even if a vendor has a lien under this statute it does not follow that it can be exercised under the circumstances of this case. Here the special creditors have no judgment and, of course, no execution. Their right vests merely on an attachment subsequent to that of appellant. Section 2353 gives the vendor this right, whatever it be, on judgment and execution, not on attachment prior to any judgment.

Mills & Flitcraft and Geo. R. Lockwood for respondents.

The vendor of personal property may, under section 4914, Revised Statutes, 1889 (R. S. 1879, sec. 2353), seize such property by attachment and subject the same to the satisfaction of his judgment and execution when obtained, to the exclusion of a general creditor, although the attachment of such general creditor may be prior in point of time. Parker v Rodes, 79 Mo. 191; State to use v. Mason, 96 Mo. 127; Mill Co. v. Turner, 23 Mo.App. 103; State to use v. Orahood, 27 Mo.App. 496; O'Connor v. Alexe, 28 Mo.App. 184; Boyd v. Furn. Co., 38 Mo.App. 210.

OPINION

Brace, J.

-- This cause is certified here by the St. Louis court of appeals, on its judgment reversing the judgment of the circuit court of St. Louis, overruling appellant's motion to require the sheriff to pay appellant the proceeds of sales made by him under attachments against Rothan & Co.

The facts of the case are thus stated in the opinion of the court of appeals: "The plaintiff sued out an attachment against Isaac L. Rothan and Isaac Rothan, Jr., composing the mercantile firm of Rothan & Co., on various grounds, which need not be stated, and caused the same to be levied on stock and fixtures of the defendants on the thirtieth of August, 1888. Soon thereafter, several other creditors of Rothan & Co. sued out attachments against them, and pointed out to the sheriff specific property on which this plaintiff's attachment had already been levied, and directed the sheriff to make special levies on such property, as being property which these attaching creditors had sold to Rothan & Co., and which had not been paid for by the latter. The property was subsequently sold by the sheriff, and the plaintiff, having prosecuted his demand to judgment, made a motion for a rule on the sheriff requiring him to pay over the proceeds of the sale to the plaintiff, as a prior attaching creditor. This motion was resisted by the subsequent attaching creditors, by whose direction the sheriff had made the special levies for unpaid purchase money, and on the hearing of it they offered to show, in substance, that the goods, on which the special levies had been made by their direction, were part of a large lot of goods which had been sold by them to Rothan & Co., and that the purchase price therefor had not been paid. The court admitted this evidence, and the plaintiff excepted. Thereupon the court overruled the plaintiff's motion, deciding that the special levies for unpaid purchase money, though subsequent in date to the plaintiff's levy, were superior to it in right."

The determination of the issue hangs upon the proper interpretation of section 2353, Revised Statutes, 1879, page 393, which reads as follows: "Personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from such judgment and execution, except in the hands of an innocent purchaser for value without notice of the existence of such prior claim for the purchase money."

This section is an act passed in 1874, as amended in the revision of 1879. As originally enacted and approved March 31, 1874 (Laws of 1874, p. 118), it is entitled, "An act to amend chapter 160 of the General Statutes of Missouri by adding a section thereto, to be numbered section 80," and reads as follows: "Sec. 80. In all cases of the sale of personal property, the same shall be subject to execution against the purchaser on a judgment for the purchase price thereof, and shall in no case be exempt from such judgment and execution for the purchase price, as between the vendor, his assignee, heir or legal representative and purchaser." The chapter 160, General Statutes, 1865, page 639, thus amended, is entitled "of executions," and sections 8, 9 and 11 of that act designate the property of an execution debtor that shall be exempt from "attachment and execution."

The evident intent of the legislature, by the amendatory act of 1874, was to take out of the exemptions allowed a debtor by the original act such of his personal property as otherwise might have been exempt from attachment or execution, when the execution is on a judgment for the purchase money for such personal property. It was not the intention of the legislature to impress upon the personal property a lien in favor of the vendor of such property, but to provide that, if upon execution issued upon a judgment for the purchase money, such property was found still the property of the execution debtor, he should not be permitted to claim and hold it as exempt from sale as against the vendor's execution for the purchase money.

The act of 1874 first came before this court for construction in 1880 in the case of Norris v. Brunswick, 73 Mo. 256, where the issue was between an execution creditor for the purchase money of some billiard tables and a purchaser of the tables from the execution debtor before levy, in which the issue is stated, and decided thus: "It is contended by the defendants that under the act of March 31, 1874, the property was subject to a judgment for the purchase money even though the transfer to the plaintiff was not fraudulent. * * * This statute did not in our opinion give a lien on the thing sold, so as to bind it in the hands of any person to whom it might be transferred, but its only effect was to prevent the purchaser from claiming such property as exempt from execution." This ruling was followed in Haworth v. Franklin, 74 Mo. 106, and in Parker v. Rodes, 79 Mo. 88; while these cases were all decided after the passage of the act of 1879, yet they were all cases arising under the act of 1874, and turned upon the construction of that act only, and whatever may have been said in either of them as to the revised act was obiter dicta.

The evident defect upon the face of the law of 1874 was that under it a debtor holding personal property not paid for, and therefore not exempt from execution for the purchase money which his creditor was seeking to recover by judgment and execution, could make transfer of such property to another and retain other property which he could claim as exempt, and thus evade its provisions; to remedy this defect so far as might be, without interfering with the rights of innocent parties dealing in good faith with the debtor, seems to have been the object of the amendment of 1879, whereby a purchaser from such debtor was precluded from setting up the absolute right of such debtor to dispose of such property as against the vendor's execution for the purchase money, unless he bought in good faith without notice that the purchase money was unpaid.

In view of the fact that the subject-matter being dealt with in these enactments was a debtor's exemptions; that the evident purpose was simply to make an exception to those exemptions and in view of the policy of the legislature as manifested in the legislation of the period (R. S. 1879, secs. 2505 and 2507) to prohibit everything like secret rights in or liens on personal property for the unpaid purchase money where possession was delivered to the vendee, we cannot think it...