J. M. Brunswick & Balke Co. v. E. L. Martin & Co.

Ellison, J. From the statement in this case it will be observed that defendants’ mortgage was executed and recorded several days prior t@ the execution of plaintiff s’ mortgage. The (question is, is defendants’ mortgage, though prior, good against plaintiffs, under the facts of the case % I think it is not. Sections 2507 and 2505, Revised Statutes, have no application to the evidence here. This was not a sale, conditional or unconditional. It was simply a contrast for a sale. Hedrick was not only not to be the owner of the property until he complied with the terms of the contract, but he was not even to have the possession of it. There is nothing in our statute, nor in the decisions of the supreme court of our state, nor, indeed, in the declecisions of the courts of any other state, which will prevent one from agreeing to sell to another his personal property on credit, provided the buyer will give him a mortgage back on the property to secure the purchase money. Here the plaintiffs were so careful, that they would not part with possession till the agreement as to the mortgage was complied with. The surreptitious caption ©f the property by Hedrick had no effect against plaintiffs’ rights. At the time Hedrick executed defendants’ mortgage, he had no title to the table. As between him and defendants, or, perhaps, between defendants and his ordinary creditors, he might, under our decisions, have executed a valid mortgage on hi® interest in the property. Wright v. Bircher, 72 Mo. 179; Frank v. Playter, 73 Mo. 672; Rutherford v. Stewart, 79 Mo. 219. Where one buys property to be paid for on delivery, the payment and delivery are simultaneous acts, and if payment is omitted, evaded or refused by the purchaser upon getting possession of the goods, the seller may immediately reclaim them. Benjamin on Sales, 334, note [163] and authorities. This same rule would of course apply where he is to execute a note and mortgage on the property to secure payment. Suppose the plaintiffs had learned that Hedrick would wilfully refuse to execute to them the notes and mortgages agreed, and had, therefore, kept the table in their possession in St. Louis, could any one be found of sufficient temerity to say, that defendants would have had the legal right under their mortgage from Hedrick, to take the table from them without payment of, or security for, the purchase money 1 Conditional sales, under which possession is surrendered to the purchaser with secret understanding between the vendor and vendee, as to the conditions and the title, and whereby the purchaser by having possession, was clothed with every indicia of ownership, being thereby enabled to deceive purchasers from him, or his creditors, was what the statute (section 2507) was striking at. Such conditions, under said section, must be placed on record that the world may be' advised that appearances of absolute ownership or title in the vendee, are not true in fact. Even the voluntary pledge of personal property without writing, the possession being turned over, is good security for a debt. Possession is notice of the adverse rights of the possessor. Wade on Notice, sect.. 78. The judgment is reversed and the cause remanded. The other judges concur.