Tufts v. Stone

• Decision Date: 17 October 1892
• Citation: 70 Miss. 54,11 So. 792
• Court: Mississippi Supreme Court
• Parties: JAMES W. TUFTS v. D. A. STONE

11 So. 792

70 Miss. 54

JAMES W. TUFTS v. D. A. STONE

Supreme Court of Mississippi

October 17, 1892

FROM the circuit court of Lauderdale county, HON. S. H. TERRAL Judge.

Replevin by James W. Tufts to recover a soda-fountain and apparatus distrained for rent by Mrs. D. A. Stone as the property of Martz Bros. The case was tried by the court without a jury on an agreed statement of facts, the material parts of which are as follows: In March, 1890, plaintiff, Tufts, sold the soda-fountain and apparatus to C. E. Martz, then engaged in business in Lincoln county, Mississippi, the price being $ 800, to be paid in twenty-five monthly installments of $ 32 each. The contract was in writing, signed by C. E. Martz and, after stating the terms of sale, contained the following stipulation: "Possession of said property is to remain with me until default in payment, but title to the same shall not pass to me, but, until all of said notes are paid, shall remain in James W. Tufts." This contract was signed and acknowledged by Martz, and promptly recorded in Lincoln county. Subsequently C. E. Martz removed to Lauderdale county, and, with his brother, S. Martz, leased from appellee, Mrs. D. A. Stone, a store-house, in which they engaged in business as partners, their firm name, as disclosed by the sign, being Martz Bros. The soda-fountain was brought from Lincoln county and placed in the store, and used in the business of said firm. The contract of sale was also recorded in Lauderdale county a short time after the removal of the property.

In December, 1891, Martz Bros. made a general assignment for the benefit of their creditors, and this property, along with their other assets, was turned over to their assignee. Thereupon Mrs. Stone, claiming rent, both in arrears and to become due, distrained and caused certain of the assets in the possession of the assignee, including the soda-fountain to be seized. Tufts brought this action of replevin therefor, and, on the trial, it was agreed that the only issue involved was whether Tufts was entitled to the said property by virtue of said instrument, or whether, under § 1300, code 1880, it should be treated as the property of Martz Bros., and, as such, liable to distress at the suit of their landlord, the appellee.

The judgment was in favor of the defendant, and Tufts appealed.

Section 1300, code 1880, provides that if one transacts business, as a trader, in his own name, without a sign disclosing ownership in another, all the property used or acquired in said business shall, as to his creditors, be deemed and treated as his.

The concluding clause of § 1293, code 1880, which is construed in the opinion, is as follows: "Where any loan of goods and chattels shall be pretended to have been made to any person with whom, or those claiming under him, possession shall have remained by the space of three years, without demand made and pursued by due course of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use or property, by way of condition, reversion, remainder or otherwise in goods or chattels, the possession whereof shall have remained in another, as aforesaid, the same shall be taken, as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will, or by writing, proved or acknowledged, and filed for record, as aforesaid."

Reversed.

E. H. Dial, for appellant.

The contract of sale, signed and acknowledged by Martz, the purchaser, was recordable. Code 1880, § 1293. Having been properly recorded, it was notice to the world of the seller's right reserved by it. See Wade on Notice, § 113.

Section 1300 of the code was designed only to guard against the assertion of secret claims. It cannot affect rights of record. Dodds v. Pratt, 64 Miss. 123.

Walker & Hall, for appellee.

This case differs from Hall v. Payne, 64 Miss. 175, only in this, that in that case the contract was not recorded. We contend that the contract in this case is not a recordable instrument. Ketchum v. Brennan, 53 Miss. 597; Duke v. Shackelford, 56 Ib., 554.

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