A. M. McPhail & Co. v. Gerry

The opinion of the court was delivered by Taft, J. The disposition of this case depends upon the construction of the act of 1872, relating to liens reserved, on property sold; whether the words “ without notice” refer to and qualify the words “ attaching creditors,” as well as “ subsequent purchasers.” The defendant contends that they do not, as there is no comma after the word “purchasers”; but it appears that in the original act the comma was there inserted ; and in this respect the original act must govern instead of the printed copy. We think the construction contended for by the defendant should not be given the printed act. It is not the natural one ; and there is no reason why a person attaching property which he knows is not that of his debtor should stand in a more- favored situation in respect to it than one who buys it with like knowledge. It is immaterial from what source such knowledge is obtained. The question is, did he have notice of such lien ? If he did, he acquired no rights as against the vendor. We think the notice in this case sufficient. He -knew of the plaintiff’s lien, and of its record, but [177] had not seen it; he was an attaching creditor with notice. No exception was taken to the report of the referee as to the ruling in regard to the deposition of Thankful C. Page. The question, therefore, is not before us. The judgment of the County Court is reversed, and judgment for plaintiff. Ross and Rowell, JJ., did not sit.