State v. Orahood

• Decision Date: 25 October 1887
• Parties: THE STATE TO THE USE OF W. T. EVANS, Appellant, v. CHARLES W. ORAHOOD ET AL., Respondents.
• Court: Missouri Court of Appeals

27 Mo.App. 496

THE STATE TO THE USE OF W. T. EVANS, Appellant, v. CHARLES W. ORAHOOD ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

October 25, 1887

APPEAL from the Clarke County Circuit Court, BEN. E. TURNER, Judge.

Affirmed.

BERKHEIMER & CALLIHAN, for the appellant: In order that the property sold shall be subject to execution the judgment must be obtained by the vendor, and must be founded on the contract of sale of the property. Rev. Stat., sect. 2353; Freeman Ex'rs, sect. 217; Buckingham v. Nelson, 42 Miss 487; Harley v. Davis, 16 Minn. 487; Davis v Peabody, 10 Barb. 91; Smith v. Slade, 57 Barb. 637.

WOOD & MONTGOMERY, for the respondent: By taking a note for his debt, Farren did not waive any of the securities which attached to the debt. Weymouth v. Sanborn, 80 Am. Dec. 144, and 43 N.H. 171; Clark v. Draper, 19 N.H. 419; Freedland v. McCullough, 43 Am. Dec. 685; 1 Denio 414; Jones v. Hurst, 67 Mo. 568. The character of the claim for purchase money was not changed by giving the note. It was still a claim for purchase money in the form of a note, and it was proper for the court to go behind the execution, judgment, and note to ascertain the real nature of the debt. Dennett v. Cutts, 11 N.H. 163; Clark v. Draper, 19 N.H. 419; Reed v. Defenbaugh, 24 Pa.St. 495; Weaver's Estate, 25 Pa.St. 434. Section 2353 does not confer a lien, but the right conferred by it may in some cases partake of the character of a vendor's lien. France v. Thomas, 68 Mo. 80; Menieke v. Bracksek, 14 Mo.App. 315; The Bolckow Milling Co. v. Turner, 23 Mo.App. 103; Parker v. Rodes, 79 Mo. 88. A vendor's lien may be enforced by a general execution. Reynolds v. Morse, 25 Ia. 157; Bills v. Mason, 42 Ia. 320; Blair & Co. v. Marsh, 8 Ia. 144; Rakestraw v. Hambleton, 14 Ia. 151.

OPINION

THOMPSON J.

This is an action upon a constable's bond for levying upon and selling a wagon which, the plaintiff claims, was exempt from execution. The wagon was purchased by the plaintiff and one Shuman, who were partners in business, of one Farren, for the sum of seventy-five dollars, for which sum the plaintiff and Shuman executed to Farren their promissory note, due nine months after date. This note was transferred before maturity by Farren to one Jordan. It was not paid at maturity, and Jordan brought an action upon it before a justice of the peace, in which service of process was had upon the present plaintiff, and judgment was rendered against him by default. An execution was thereupon issued, which was levied by the defendant, Orahood, as constable, upon the wagon for the purchase price of which the note had been given, and the same was sold thereunder.

This record presents for decision the question whether the wagon was exempt in the hands of this plaintiff as against the note given by him to Farren for the purchase money, in the hands of one who had purchased the note for value, of Farren. The question arises upon certain rulings of the circuit court, in refusing to strike out a portion of an amended answer setting up this defence, in admitting in evidence a transcript of the justice's docket entries in the suit upon the note, and in ruling that the defendants might explain, by parol evidence, the justice's judgment, so as to show the consideration of the note upon which it was founded.

The questions presented are not free from difficulty, but we have come to the conclusion that the rulings of the circuit court were correct.

Our statute relating to executions exempts certain personal property from execution in the hands of heads of families and persons pursuing certain occupations. In so far as it does this, it may be regarded as establishing a general rule. It then creates certain exceptions to this general rule, among them the following, embodied in section 2353, Revised Statutes: " Personal property shall, in all cases, be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall, in no case, be exempt from such judgment and execution, except in the hands of an innocent purchaser, for value, without notice of the existence of such prior claim for the purchase money." The question for decision here is, whether the transferee of a promissory note, given for the purchase price of a chattel which chattel would, under the general rule created by the statute, be exempt from execution in the hands of the maker of the note, which transferee sues such maker upon the note and recovers an ordinary judgment thereon, recovers " a judgment against the purchaser for the purchase price" of the chattel, within the meaning of the statute? We think that he does. It can not, we apprehend, be contended that the right to subject the chattel to the payment of the indebtedness for its purchase price is waived by the vendor by the mere fact of taking a promissory note from the purchaser. So far as we know, none of the decisions relating to the subject go so far. If we are right in this conclusion, the exception contained in section 2353, Revised Statutes, creates a privilege or incident, which inheres in the note, which is the evidence of the debt. Is this privilege, which may, in certain cases, be the only thing which gives any value to the note, destroyed by the mere fact of the note being transferred to a third person, who is a stranger to the original consideration? If this is so, the mere fact of negotiating such a note, in the course of trade, may impair or destroy the value of the note itself. The vendor of the chattel can not thereafter sue upon the original consideration, nor can the transferee of the note recover a judgment thereon which he can make available by means of an execution against the chattel, the sale of which formed its original consideration. Such a result would be contrary to the analogy of the well-understood rule that a transfer of a promissory note carries with it the transfer of a mortgage, vendor's lien, or any other securities for its...