Plaintiff v. Etl
| Decision Date | 20 November 1895 |
| Citation | 41 W.Va. 191 |
| Court | West Virginia Supreme Court |
| Parties | Poling et al. v. Flanagan et etl. |
An absolute present sale of chattels is valid between the parties without delivery of possession or payment of the price; and the seller is entitled to the price, the purchaser to the possession of the chattels. But as to subsequent purchasers without notice from the seller, or his creditors, the non-delivery of possession renders the sale prima facie void, as a matter of law, calling on the purchaser to show clearly the sale to be bona fide; but, if shown to be so, it is valid against such purchasers and creditors.
In a sale of chattels capable of delivery of possession, where there is no delivery of possession, if the setter retain any interest in the chattels, that fact, in connection with his retention of possession, renders the sale, not merely prima facie void, but absolutely void, as a matter of law, as to purchasers for value without notice and creditors of the seller. If the sale, though in form absolute, is really to secure a debt, and is thus a mortgage, the right of redemption is such an interest in the seller as, taken with his retention of possession, renders it so void.
A writing showing a sale of personalty need not he recorded; but a mortgage or deed of trust of personalty must be recorded to bind purchasers without notice and creditors.
A writing importing an absolute sale of chattels, but in fact intended only to secure a debt, is a mortgage, and must be recorded as a mortgage of chattels to affect creditors and purchasers without notice, but, if recorded, it will bind them.
An attachment from a justice's court or a circuit court creates a lien on leviable chattels only from its levy.
To make a valid levy of an attachment upon chattels, the officer, though he need not physically seize or even touch them, must have them in his view and power, and do some act indicative of an intent to levy and of the act of levying, and, if the chattels are of a nature to admit of it, must take them into his custody and control.
Under a bona fide sale of chattels, though there is no delivery of possession at the time of sale, yet, if the purchaser gets possession of them before an attachment is levied, his title i-s good against the attachment.
Lipscomb & Lipscomb and W. B. Maxwell for plaintiffs in error, cited Starkie Ev. (s. p.) 797; 6 W. Va. 508; 18 Vv. Va. 299, 659; 20 \V. Ya. 46; 26 W. Ya. 344, 455; 8 W. Ya. 515; 10 W. Ya. 507, 546, 560; 23 W. Ya. 267; Drake, Attach. (6th Ed.) §§ 221, 222, 227, 256, 323; 2 Freeman, Exec. § 260; 1 Tucker (s. p.) 109; Jones, Mortgages, § 702.
Dayton & Dayton for defendants in error:
I. Unrecorded security for debt. Code, c. 74, s. 5; 28 W.
Ya. 744; 26 VV. Ya. 807; 17 W. Va. 242; 15 W. Ya. 829; 12 W. Ya. 98; 8 W. Va. 36.
II. Conditional sale void as to creditors if not recorded. 33
III. What constitutes sufficient levy. Hutchinson's W. Va. Treatise, p. 795, § 1155; 2 Tuckers Com. Book 3, c, 20, p. 366; 1 Munf. 269; Freeman, Ex. §§ 260, 261, 262.
IV. Collateral attack. 52 Mich. 260; Van Fleet, Col. Atck; p. 474, § 469; 38 W. Va 596; 4 W. Va. 130; 10 W. Va. 10; 26 YY Va. 324.
Poling Bros brought detinue against Flanagan and Wiley in the Circuit Court of Tucker county to recover certain horses and harness, and, upon a demurrer by defendants to the evidence, judgment was rendered for defendants.
Junkins sold the property in controversy by written contract or bill of sale to Poling Bros., and under this Poling Bros, claimed it; while the defendants defend under an attachment levied by Flanagan, as constable, in an action brought by Wiley, a creditor of Junkins.
The first question arising is whether the plaintiffs had title to the property, as, to maintain detinue, they must have. Robinson v. Woodford, 37 W. Va. 377 (16 S. E. 602). This question is easily answered so far as it concerns Poling Bros, and Junkins; for Junkins made an absolute bill of sale, by which be sold, assigned, and transferred all his right, title, and interest in the property to Poling Bros. This surely passed title, without regard to delivery of possession; for where a vendor consents to sell, and the vendee consents to buy immediately a specific chattel, a sale is made passing title, and neither a delivery nor tender of the property, nor payment of price, is necessary to perfect the sale. Chapman v. Campbell, 13 Gratt. 105; Morgans. King, 28 W. Ya. 1; 3 Minor, Inst. 98. In such case the purchaser becomes at once entitled to the possession; the seller, to the price. The contract need not in this state be written, as we have not adopted the statute of Charles II, requiring, for a valid sale, the delivery of the chattels in whole or part, or something given and accepted in earnest or part payment. 3 Minor, Inst. 98. But, where the rights of creditors and purchasers enter into the matter, the question presents a different face. As the books generally state, something else becomes necessary. Outside of that statute, one would think that a complete contract made in good faith would be enough; but as possession implies ownership, and credit is extended on its faith, in most jurisdictions something else is required to protect the vendee's right against creditors of the vendor or second purchasers of the property, and that something else is delivery. This word "delivery" is employed in so many senses that we have to discriminate closely when we read the books to see in what sense it is used. What is a sufficient deli very of possession under statute or at Common-law where delivery is required? Here the cases are as numerous as the stars in the sky, and confusion and chaos reign under them. It would be work endless, and at last obscure, to essay any discussion of them; nor is it necessary to decide a case under our law. With us a sale, if bona fide, is good without delivery, as below shown. Many of the decisions are under the English or other statutes requiring delivery of possession, and take their hue from such statutes, and are not here applicable; and in the maze it is hard to discriminate and say just what ones are under such statutes. See full note to Claflin v. Rosenberg, 97 Am. Dec. 336; Newmark, Sales, § 247; Stephens v. Gifford (Pa, Sup.) 20 Atl. 542; note to Renninger v. Spatz (Pa. Sup.) 15 Am. St. Rep. 692 (18 Atl. 405); Benj. Sales (6th Ed., by Bennett) 672. But no statute tests the question here. The rule that the retention of possession of a chattel by the seller after absolute sale is per se fraud that is, conclusive evidence of fraud rendering the sale void as to subsequent purchasers and creditors of the seller, does not prevail here, but it is prima facie evidence of fraud, and will overthrow the sale as to purchasers and creditors unless circumstances of good faith are shown by the purchaser. I am relieved of any discussion of the subject by the elaborate discussions in Davis v. Turner, 4 Gratt. 422, and Bindley v. Martin, 28 W. Ya. 773. In the former case the doctrine of fraud per se, or that such retention of possession is conclusive evidence of fraud, is repudiated, and the rule laid down that the "retaining of possession of personal property by the vendor after an absolute sale is prima facie fraudulent, but the presumption may be rebutted by proof.*' In the case of Bindley v. Martin, supra, this doctrine is approved, but the syllabus is more elaborate, and is prudently warning to courts and juries in applying this doctrine to the prejudice of creditors. The same is Curtin v. Isaacsen, 36 W. Ya. 391 (15 S. E. 171).
In this case the facts here pertinent are that Poling Bros, contracted with Junkins to buy all his merchantable lumber to the amount of two hundred thousand feet, and advanced him on the contract one thousand eight hundred dollars. Junkins diverted some car loads from the performance of this contract, by selling the lumber to others; and, when. Poling Bros, called for their lumber, they found only eighty thousand feet to goon the contract. They demanded their money, when Junkins proposed to satisfy them by selling them anything he had, and it ended in the execution by Junkins of the said bill of sale, conveying to Poling Bros, some logs, lumber, mules, horses, and harness, Then Poling Bros, made a contract with Junkins for a certain amount of lumber and logs, and were to pay him five dollars per thousand for lumber put on the railroad, to pay him for putting the lumber to the railroad, and in addition, let him have the horses and mules to get out the logs and put the lumber to the railroad. Junkins went on to execute this contract, and Poling Bros, paid him one thousand two hundred dollars after the bill of sale, and sold him or let him have back some of the animals; and, at the time of the levy of the attachment of Wiley on the property in controversy, there was a balance due Poling Bros, taking all the money they had furnished Junkins into account, of eight hundred and forty dollars, besides compensation for the teams. The property remained in the possession and use of Junkins. It is very evident from the evidence that the bill of sale, though simply such, passing the legal title, and silent as to any right of redemption was simply a security for the payment of money due Poling Bros., so intended by the parties, and therefore, in the view of equity, a mortgage, McNeeVs ExWs v. Aiddridye, 34 W. Ya. 748, ' (12 S. E. 851); Bird v. Wilkinson, 4 Leigh, 266. If we view it only as a bill of sale, as it left some interest in Junkins, I rather think it would be, in the eye of the law,...
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