Maxwell v. Tufts.
| Decision Date | 18 August 1896 |
| Citation | 45 P. 979,8 N.M. 396 |
| Parties | MAXWELLv.TUFTS. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Error to district court, Bernalillo county; before Justice N. C. Collier.
Replevin by James W. Tufts against W. A. Maxwell, receiver. Judgment for plaintiff. Defendant brings error. Affirmed.
A contract by which chattels are sold with provision that title remain in the seller till payment of the purchase money is not within Act 1889, requiring “all chattel mortgages or other instruments of writing having the effect of a mortgage or a lien on personal property” to be recorded; and the seller can therefore claim as against an attaching creditor of the buyer, though the instrument be not recorded.
W. B. Childers, for plaintiff in error.
Johnston & Finical, for defendant in error.
This is an action in replevin, brought to recover possession of a soda fountain and apparatus. The cause was tried before the court without a jury, upon a stipulation as to the facts. Burgess & Son gave their notes, and acquired the property from Tufts under what is usually described as a “conditional sale.” The controlling clause is as follows: “It is understood and agreed by and between us and the said James W. Tufts that the title to the above-mentioned property does not pass to us, and that until all said notes are paid the title to the aforesaid property shall remain in the remain in the said James W. Tufts, who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law to enter and retake immediate possession of the said property, wherever it may be, and remove the same.” The contract was not field or recorded in the recorder's office. The Bank of Commerce brought suit by attachment against Burgess & Son, and levied it upon the chattels in question. Eight of the installment notes having become due and remaining unpaid, Tufts, after demanding possession of the property, brought this action in replevin. The court below found in favor of the plaintiff, and the defendant, Maxwell, who held as receiver in the attachment case, brought this case here by writ of error.
The question is as to whether the vendor of an unrecorded conditional sale of chattels has a superior title to an attaching creditor of the vendee. It early became the settled law that a mortgage of chattels which were allowed to continue in the possession of the mortgagor did not thereby become fraudulent, as against the purchasers or creditors of the mortgagor. Unlike the absolute sales of chattels where the vendor remained in possession, there was nothing inconsistent in the possession of the mortgagor, with the defeasible title in the mortgagee, and therefore nothing implying a secret use. Twyne's Case, 1 Smith, Lead. Cas., and notes; Edwards v. Harben, 1 Term R. 587; Conard v. Insurance Co., Pet. 388, 449. But the difficulty of proving actual fraud, or the falsity of such secret transactions, furnished a cover so convenient to fraud and perjury that the legislatures quite generally provided that such mortgages should be invalid, as against purchasers and creditors, unless the mortgagee took possession of the chattels, or recorded the mortgage in the public registry of deeds. These recording acts, requiring chattel mortgages to be recorded, were held, however, not to apply to sales conditional upon the payment of the purchase price by the vendee. In Redewill v. Gillen (N.M.) 12 Pac. 872, this court passed upon these general questions, and held that the conditional sale of chattels did not fall within the act then in force, requiring chattel mortgages to be filed in the recorder's office, and that such vendor could assert his rights against creditors or purchasers of the vendee. Since then the act of 1889 was passed, which amended the old law so as to read as follows: “All chattel mortgages or other instruments of writing having the effect of a mortgage or a lien upon personal property shall be acknowledged by the owner or mortgagor and recorded in the same manner as conveyances affecting real-estate. Acts 1889, c. 73, § 1. It was contended by the plaintiff in error that the instrument evidencing the transfer from Tufts to Burgess & Son was an instrument “having the effect” of a “lien,” within the meaning of this act. Where, by the terms of the...
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