Neal v. Cone

Wood, J., (after stating the facts.) The affidavit of the appellee, and his evidence, and that of the only other party to the contract out of which the suit arose, shows that the suit was an effort upon the part of appellee to enforce a specific attachment in favor of the vendor of a lot of staves for the purchase price of the timber that was used in the manufacture of the staves. It appears that appellee asked and was granted on his affidavit an order directing the officer to take the staves designated, which was duly executed, and in this way appellee seeks to establish a vendor’s lien upon the staves under sections 4966-67 of Kirby’s Digest. This statute only gives the vendor of personal property in an action brought for the recovery of the purchase money the right to seize the property purchased while it is in the possession of the vendee. It does not give him a lien which he can enforce at law by seizing the property after it has passed into the hands of third parties who have purchased the same for value, although such parties may have notice before their purchase that the purchase money has not been paid. An effort to enforce a specific attachment for the purchase money is inconsistent with a claim of title to the property itself. It is true that appellee testified that it was the understanding between him and the party to whom he sold the timber that he was to have the money for the purchase thereof before the staves were sold. But this was not tantamount to a reservation of title, and all the other evidence shows conclusively that title was not reserved. But, if title had been reversed, then the action founded upon the affidavit in suit was improper. This action could not be converted from an action to recover purchase money under the-statute supra into, an action of replevin to try the title and right of possession to the property. The verdict and judgment were not responsive to the pleadings and proof in the case. Reversed and remanded for further proceedings.