Collins v. Wilhoit

• Decision Date: 01 March 1892
• Citation: 18 S.W. 839,108 Mo. 451
• Parties: COLLINS v. WILHOIT et al.
• Court: Missouri Supreme Court

18 S.W. 839

108 Mo. 451

COLLINS v. WILHOIT et al.

Supreme Court of Missouri.

March 1, 1892.

CONDITIONAL SALE — VALIDITY — NOTICE.

1. Rev. St. 1879, § 2505, cl. 2, providing that no sale of chattels, where possession is delivered to the vendee, shall be subject to any condition whatever as against creditors of the vendee, or subsequent bona fide purchasers, unless such condition shall be evidenced by writing and recorded, applies to prior as well as subsequent creditors.

2. A sale upon oral condition is void as to creditors under said statute, even though such creditors have actual notice of the condition. Coover v. Johnson, 86 Mo. 533, overruled.

SHERWOOD, C. J., dissenting.

In banc. Appeal from circuit court, Platte county; JAMES M. SANDUSKY, Judge.

Replevin by Perry H. Collins against J. Wilhoit and others to recover four hogs. Plaintiff obtained judgment, which was reversed by the Kansas City court of appeals, and certified to this court. Affirmed.

A. D. Burnes and Jas. W. Coburn, for appellant. John W. Coots, for respondents.

BLACK, J.

The plaintiff commenced this action of replevin before a justice of the peace to recover four hogs. He prevailed in the justice's court and again in the circuit court. The Kansas City court of appeals, to which the cause was appealed, reversed the judgment of the circuit court and remanded the cause, and then certified the same to this court for the reasons hereafter stated. The facts are these: Joseph Kindred recovered a judgment against McComas in 1885 or 1886. In October, 1887, McComas purchased from Collins, the plaintiff in this case, twenty head of hogs, including the four now in question. He did not pay for them, and it was verbally agreed between him and Collins that McComas should take possession of the hogs, but that they should remain the property of Collins until paid for. An execution was issued on the judgment in favor of Kindred against McComas, and placed in the hands of Constable Wilhoit, who levied the same on the four hogs in question on the 14th December, 1887. The date of the execution is not given. Collins then commenced this suit, McComas not having yet paid for the hogs. There is some other evidence which will be noticed hereafter. The case turns upon the question whether the court erred in refusing the following instruction asked by the defendant: "That if Collins sold the hogs in controversy to McComas and delivered possession of them to McComas, and at said sale it was agreed between them that the hogs were to be the property of the vendor until paid for, then said sale is void as against the creditor of the vendee, unless said condition as to ownership was reduced to writing, acknowledged, and recorded as provided by law in cases of mortgages of personal property." The defendant bases his right to have this instruction given on the second clause of section 2505, Rev. St. 1879. The first clause provides: "Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by a delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void as against the creditors of the vendor, or subsequent purchasers in good faith." And the second clause is in these words: "And no sale of goods and chattels, where possession is delivered to the vendee, shall be subject to any condition whatever as against creditors of the vendee, or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed, and acknowledged by the vendee, and recorded as now provided in cases of personal property.

From the foregoing statement it will be seen that Kindred recovered his judgment before Collins sold the hogs to McComas, so that he was a prior creditor of McComas; and the first question is whether the term "creditors," as used in the second clause, includes prior creditors. The Kansas City court of appeals held in this case that it included prior as well as subsequent creditors, while the St. Louis court of appeals holds that it means subsequent creditors only. Machine-Works v. Trisler, 21 Mo. App. 69; Knoop v. Distilling Co., 26 Mo. App. 303; State v. Tree Co., 32 Mo. App. 276. It is because of this conflict in the rulings of those courts that the case in hand was certified to this court. The first clause of section 2505 is the old tenth section of the statute concerning fraudulent conveyances, as amended by Gen. St. 1865. In 1877 the legislature added the second clause by way of an amendment, and as thus amended the whole section was carried into Rev. St. 1879. Prior to 1877 these sales upon condition that the title should remain in the vendor until payment of the purchase price were held valid as against creditors, though the condition was not made matter of record. Manufacturing Co. v. Culp, 83 Mo. 548, and cases cited. Such sales became of frequent occurrence, and were productive of much mischief, and hence the new enactment. The fact that this new enactment was made by an addition to the old section as amended in 1865, and the manifest similarity of the language used in the clauses, show quite clearly that the legislature used the term "creditors" in the second clause in the same sense in which it had been used in the first. Now, we have held that the first clause, in speaking of creditors, means and includes prior as well as subsequent creditors, (Knoop v. Distilling Co., 102 Mo. 157, 14 S. W. Rep....