30 F.2d 979 (S.D.Miss. 1929), 2386, In re Whatley

• Docket Nº: 2386.
• Citation: 30 F.2d 979
• Opinion Judge: HOLMES, District Judge.
• Party Name: In re WHATLEY.
• Attorney: Chambers & Trenholm, of Jackson, Miss., for petitioning creditor. Powell, Harper & Jiggitts, of Jackson, Miss., for trustee.
• Court: United States District Courts, 5th Circuit, Southern District of Mississippi

Page 979

30 F.2d 979 (S.D.Miss. 1929)

In re WHATLEY.

No. 2386.

United States District Court, S.D. Mississippi, Jackson Division.

1929

In Bankruptcy. In the matter of D. U. Whatley, bankrupt. On petition to review an order of the referee denying a petition of the Sunshine Sales Company, praying that it be allowed to waive the benefit of a conditional sales contract, and enforce a vendor's lien. Decision of referee affirmed.

Chambers & Trenholm, of Jackson, Miss., for petitioning creditor.

Powell, Harper & Jiggitts, of Jackson, Miss., for trustee.

HOLMES, District Judge.

This case is before the court on petition to review an order of the referee denying a petition of the Sunshine Sales Company, praying that it be allowed to waive the benefit of a conditional sales contract containing a title retention provision, and enforce a vendor's lien against a refrigerator sold by the petitioner to the bankrupt, upon which there is a balance due of $220 of the purchase money.

It is conceded by the petitioner that its right to priority under the conditional sales contract would be defeated by the Mississippi Sign Statute, but in my judgment this is not sufficient reason to allow it to claim a purchase-money lien on property, the title to which is in it. In other words, petitioner attempts to say that, although the title is in itself, nevertheless it has a lien; but the fallacy in this position is that one cannot have a vendor's lien on property without parting with the title; in fact, where one has a lien on property and acquires title, the lien is merged into the sole ownership. The conditional sales contract is not void as between the parties, but is simply defeated as to creditors by the Mississippi Sign Statute (Hemingway's Code 1927, § 3334). For this reason, I think the decision of the referee should be affirmed.

I do not mean to hold by implication that a purchase-money lien would be enforceable under the facts here. Whether or not such lien would be valid in bankruptcy is determinable by the rights of a lien creditor under the laws of Mississippi. On this subject, the Supreme Court of Mississippi, in Pearson v. William R. Moore Dry Goods Co., 146 Miss. 225, 110 So. 709, rendered judgment for the trustee in bankruptcy, and remitted the plaintiff, seeking to enforce a purchase-money lien, to the bankruptcy court to assert its rights as a creditor therein, and...