Redewill v. Gillen.

• Citation: 4 N.M. 72,12 P. 872
• Parties: REDEWILLv.GILLEN.
• Decision Date: 19 January 1887
• Court: Supreme Court of New Mexico

4 N.M. 72

12 P. 872

REDEWILL

v.GILLEN.

Supreme Court of the Territory of New Mexico.

January 19, 1887.

Appeal from district court, Grant county.

Action of replevin. Judgment for plaintiff. Defendant appeals.

Where personal property was sold and delivered on condition that the title should remain in the vendor until full payment of the purchase price, in default of which the vendor might resume possession on repayment of installments paid, less a monthly rental and an amount agreed upon as damages, and the vendee, without paying the purchase money, sold the property to another, who claimed to be a bona fide purchaser for value, but failed to show he had no knowledge of the original vendor's contract, in an action of replevin, brought by the original vendor against the subsequent purchaser, for the recovery of the property-Held: In the absence of proof on the part of defendant of want of knowledge of plaintiff's contract, defendant had no rights he could assert against it. A defendant who relies upon a purchase in good faith for value must show want of knowledge; it will not be presumed.

Fielder & Fielder, for appellant.

Murat Masterson, for appellee.

BRINKER, J.

This was an action of replevin for a piano. On the thirtieth day of November, 1883, plaintiff delivered to one Charles Morse the piano in question, and at the time of delivery the following agreement was executed:

“This is to certify that I, Charles Morse, have this day leased of A. Redewill a square Pease piano, style O, sq., number 30,158, manufactured by C. D. Pease & Co., valued at two hundred and fifty dollars, in gold coin, subject to the following conditions, to-wit:

“(1) Seventy-five dollars to be paid by me to A. Redewill, as rent therefor, on December 10, 1883, and twenty-five dollars to be paid on the tenth day of each month thereafter as such rent for seven months, with interest on regular deferred payments at the rate of one per cent. per month.

“(2) And, should I fail to make any of the above payments as specified, I hereby agree to surrender said piano to A. Redewill in as good condition as when received, customary wear by careful usage excepted; provided that, if I am not required to surrender said piano upon a failure to make any payment when due, I agree to pay to said A. Redewill two per cent. per month on such deferred payments until paid.

“(3) And I further agree that said piano shall not be removed from the premises No. ___, Deming, New Mexico, now occupied by me, for any purpose or use whatsoever, (removal from danger of fire excepted,) without the consent of A. Redewill.

“(4) It is expressly understood and agreed that until all of said sum of two hundred and fifty dollars, with interest thereon as aforesaid, is paid, the said piano is to remain the property of the said A. Redewill, and I have no power or right to dispose of the same; but when all of said sum of $250, with interest thereon as aforesaid, is paid, then the title of the said piano is to invest in me, and the said A. Redewill is to give me a bill of sale of the same.

“(5) It is also agreed that, in the event that I shall fail to make either of said monthly installments at maturity, the said A. Redewill may at his option take possession of the said piano, and cancel this contract on refunding the money already paid by me, after deducting therefrom $10 per month rent, and expenses of removal, and the sum of $50 as liquidated and assessed damages, which I hereby promise and agree to pay said A. Redewill in the event that I shall fail to perform the terms of this contract.

“In witness whereof I have hereunto set my hand, in Deming, New Mexico, this thirtieth day of November, 1883. A. REDEWILL,

“CHARLES MORSE.”

The piano remained in the possession of Morse, under this agreement, until the fourth day of March, 1884, when Morse sold it, with all his other household goods, including saloon fixtures, etc., and a house situate upon leased lots in Deming, to the defendant. In April of that year the plaintiff, who appears to have been a resident of the state of California, came to Deming, and demanded the piano of defendant, who refused to deliver it to him.

On the trial plaintiff, on his direct examination, testified that he had “leased or sold” the piano to Morse. On cross-examination he reiterated this statement, and said that Morse had never paid him a cent on it. and that it was worth $250. Defendant testified that he bought and paid for the piano, together with the house and all the personal property, in a lump, of Morse, in good faith, for the sum of $1,150; that nothing was said about the price of any particular article; and that, before he purchased, he had the county records examined for incumbrances on the property and found none. The property which defendant purchased from Morse consisted of a house of three rooms, one billiard table, one set of balls and cues, and one set of pool-balls, a lot of whisky, case goods, fancy liquors and champagne, the piano in question, an iron safe, two sets of pins and balls for use in a bowling alley, three stoves, all the kitchen and bed-room furniture, including beds and bedding, one sewing-machine, and $150 worth of millinery goods.

Idus L. Fielder, one of the defendant's attorneys, testified that the house would sell for $500 or $600. The sale from Morse to defendant was concluded in the afternoon of March 4th, and Morse left Deming that night, and his whereabouts have ever since been unknown.

The court instructed the jury, in substance, that the agreement set out above was a lease, and that no title to the piano passed under it to Morse, and that, therefore, Morse could convey none to defendant. Defendant duly excepted to this instruction, and insisted upon this exception in his motion for a new trial. The court overruled his motion for a new trial, and to this ruling defendant also excepted.

The defendant does not say, nor was there any testimony to show, that he had no knowledge of the contract under which Morse held the piano. He contents himself with saying that he bought the piano in good faith, and that there was no incumbrance upon it of record. The term “good faith” has a well-defined meaning; and when used to qualify a purchaser, means one who buys honestly for a valuable consideration, and without notice. 1 Burrill, Law Dict. 213; Wade, Notice, § 67, and cases cited. In a more restricted sense, it may mean that the purchaser took the property, and paid for it, intending that the title should pass to him without any interest being reserved to his vendor. In this case, the defendant, having contented himself with merely examining the records for the purpose of finding incumbrances, and saying nothing about what information he may have received from other sources, we are inclined to think that in his testimony he used the term in its restricted sense; especially so when we remember that he bought the goods in mass for $1,150, without naming the price of a single article,-the purchase embracing a house worth $500 or $600, a piano worth $250, millinery goods worth $150, a billiard table, three stoves, household and kitchen furniture, and a number of other articles. Copland v. Bosquet, 4 Wash. C. C. 589.

We do not hold that it was necessary for defendant to have made inquiry as to how Morse held the piano unless there were circumstances casting suspicion upon his title. State v. Merritt, 70 Mo. 275; contra, Coggill v. Railroad Co., 3 Gray, 550. Upon this we express no opinion; but we do hold that, if the defendant had no knowledge or information on the subject, he should have proved it. Copland v. Bosquet, supra. Want of knowledge will not be presumed, in the absence of proof, when defendant relies upon a purchase in good faith and for value.

Defendant insists that the court erred in instructing the jury that the agreement was a lease, and that defendant obtained no title by his purchase. In support of his contention he cites us to the following adjudged cases and text-books: 5 N. W. Rep. 758; ^FN1 7 N. W. Rep. 67; ² 3 N. W. Rep. 713; ³ Vaughn v. Hopson, 10 Bush, 337; Wait v. Green, 36 N. Y. 556; Fosdick v. Schall, 99 U. S. 235; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664; Heryford v. Davis, 102 U. S. 235; Williams, Pers. Prop. 98; Wait, Act. & Def. 538-636; Benj. Sales, (4th Amer. Ed.) § 457.

^FN1. Ordway v. Smith, 5 N. W. Rep. 757. The purchaser at a guardian's sale does not acquire a taxable title until the deed is given, and the sale confirmed ex parte instrument purporting to be a bill of sale, and which provided that title to the chattel in dispute should remain in vendor until paid for, and which was dated, executed, and filed nearly two months after the sale had taken effect, did not give constructive notice to a subsequent purchaser.

The cases in the Northwestern Reporter we have been unable to examine, because the books are not accessible. We were unable to find them in any other publication, because counsel have adopted the inexcusable practice of referring in their brief merely to the volume and page, without giving the names of the parties.

Fosdick v. Schall, supra, is not in point. That was a contest between the lessor of railroad cars and a mortgagee of the railroad, with all of its property, rights, and franchises. The mortgage was executed by the railroad long before the cars were delivered. The mortgagee sought to hold the cars as after-acquired property, inuring to his benefit. The court held that this could not be done; that while it was true that the mortgage would attach to the cars as after-acquired property, still it would only attach to the interest of the railroad company, and if any one held a title superior to that of the railroad, the mortgagee would take subject to such superior title; and, if such title was asserted, it must prevail.

In Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, an engine was delivered to Conant & Co. under a written...