Blackwell v. Walker

• Decision Date: 01 January 1880
• Citation: 5 F. 419
• Parties: BLACKWELL, THOMPSON & CO. v. WALKER BROS. & CO. DEAL v. HECHT.
• Court: U.S. District Court — Eastern District of Arkansas

5 F. 419

BLACKWELL, THOMPSON & CO. v. WALKER BROS. & CO.

DEAL v. HECHT.

United States Circuit Court, E.D. Arkansas.

1880

M. W Benjamin, for plaintiff in first case.

Erb &amp Erb, for defendant in first case.

J. M Moore, for plaintiff in second case.

Henderson & Caruth, for defendant in second case.

These cases raise the question of the validity of conditional sales.

In the first case the plaintiffs agreed to sell one Cowger a gin portable steam-engine, and fixtures for the sum of six hundred and twenty-three dollars and seventy-eight cents, ($623.78,) upon his paying the agreed price. Cowger executed his note for the price, and plaintiffs gave him possession of the articles upon the distinct verbal agreement that the right of property therein should not pass to him, but should remain in the plaintiffs until the price agreed upon was fully paid. The defendants were creditors of Cowger at the time he received possession of the chattels from the plaintiffs, and subsequently recovered judgment on their debt and caused an execution to be levied on the chattels as the property of Cowger. Cowger still owes $400 on the purchase.

The vendors here filed a petition setting up these facts, and asking that the property be discharged from the levy of the execution, and the marshal ordered to deliver same to them.

In the last case there was a conditional sale, substantially in the same terms as in the first, of work oxen and wagons, and the difference in the two cases is that, in the latter case, the conditional sale is evidenced by a written contract of the parties; and the vendee, without paying the stipulated price for the property, sold and delivered it to the defendant, who purchased it in good faith and without notice of the vendors' want of title, and the plaintiff, the first vendor, has brought an action of replevin for the property.

CALDWELL D. J.

Conditional sales were valid by the common law, and their validity was not affected by the provisions of the English statute of frauds, nor are they within the recording acts of this state. In the case of a chattel mortgage, the property and possession of the chattel, in this state, is in the mortgagor, and neither the property nor the possession is changed by the mortgage; but the mortgagee acquires in the language of the statute, 'a lien on the mortgaged property from the time the same is' filed for record. Gantt's Digest, Sec. 4288. In a conditional sale, the property in the chattel is separated from the possession, the property remaining in the vendor, and the possession only passing to the vendee. The same thing happens upon the loan, hire, or other like bailment of chattels; in all such cases the right of property in the thing bailed remains in the bailor, and the actual possession passes to the bailee. If one loan or hire his horse to his neighbor, he does not have to reduce the contract for the bailment to writing, and have it signed, acknowledged, and recorded, in order to prevent the bailee from making an effectual sale of the horse, or his creditors from seizing it on execution for his debts.

The possession of personal property is undoubtedly presumptive evidence of title, but it is also a general rule that a vendor in possession of such property can impart no better title to it than he himself possessed. There are some exceptions to this rule, but the case of a vendee in possession of chattels, not be be consumed in their use, under a conditional contract of sale like these we are considering, is not one of them.

One of the earliest cases in this country on the subject of conditional sales was Hussey v. Thornton, 4 Mass. 405. In that case the contest was between the vendor and an attaching creditor of the vendee whose debt was contracted prior to the conditional sale. The court held the conditional sale valid against the attaching creditor, but in the course of the opinion in the case Parsons, C. J., said: 'Had the demands of these attaching creditors originated while the goods were in the possession of Tood & Worthly, (the conditional vendees,) so that it might be fairly presumed that a false credit was given them, or had they sold them bona fide for a valuable consideration, our opinion was not necessary to a decision of the case before the court, and afterwards, when a case did arise making it necessary to decide whether such sales were valid against creditors whose debts were contracted while the vendee was in possession of the property under such conditional purchase, the dictum in Hussey v. Thornton was disapproved, and Parker, C. J., who, said: 'If the transaction is fraudulent, the vendor setting up a condition to the sale, yet suffering the vendee to be in possession, exercising full rights over the property, with the intent and purpose of enabling him to obtain credit on the strength of the property, he will not be able to avail himself of such condition, but the sale will be held to be absolute in regard to creditors. But if bona fide, and the object of the condition was merely security to the vendor, he shall not lose his property because some creditor of the vendee supposed it to belong to him. ' Ayer v. Bartlett, 6 Pick. 71.

Later cases in the same state affirm the law as laid down in Ayer v. Bartlett, and it seems to be the settled doctrine of the courts in this country. Arrington v. Houston, 38 Vt 448; Bigelow v. Huntly, 8 Vt. 151; Buckmaster v. Smith, 22 Vt. 203; Chaffe v. Sherman, 26 Vt. 237; Bradley v. Arnold, 16 Vt. 382; Paris v. Vale, 18 Vt. 277; Barrett v. Pritchard, 2 Pick. 512; S.C. 13 Am.Dec. 449, note; Marston v. Baldwin, 17 Mass. 606; Merrill v. Rinker, 1 Bald.C.C.R. 528; Blood v. Palmer, 11 Me. 414; Miller v. Bascom, 28 Mo. 352; Rogers' Locomotive Works v. Lewis, 4 Dillon, 158; S.C. 3 Cent.L.J. 784. And it seems to me to be equally well settled that the vendor, ho has peen guilty of no laches in asserting his right to the property, may recover it from a bona fide purchaser from the vendee. Coggill v. Hartford R. Co. 3 Gray, 545; Ballard v. Burgett, 40 N.Y. 314; Bigelow v. Huntly, 8 Vt. 151; ...