Bolckow Milling Co. v. Turner, Frazer & Co.

Hall, J. The claim made by the Bolckow Milling Company rests upon section 2353, Revised Statutes, which provides as follows : “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 tht hands of an innocent purchaser, for valioe, without notice of the existence of such prior claim for the purchase money.” It cannot be said that the statute confers upon the vendor of personal property a lien for the purchase price thereof. France v. Thomas, 86 Mo. 80; Menicke v. Brachsek, 14 Mo. App. 315. The right conferred by the statute may, however, in some cases, partake of the character of a vendor’s lien. Menicke v. Bracksek, supra. In speaking of this statute, the supreme court of this state has said: “ Under this statute the vendor of personal property who had obtained a judgment against the vendee, might seize the property on execution in the hands of a purchaser thereof, with notice that the purchase price had not been paid, and it would probably aut7iorize the vendor, under circumstances jiostifying 'a suit by attachment against the vendee, to seize such property in the hands of a t7iird person purchasing [109] with notice that the property had not been paid for.” Parker v. Rodes, 79 Mo. 88. From these remarks it is clear that the supreme court entertains the opinion that this statute should be .so construed as to carry out the object for which it was .enacted. That object was to enable the vendor of personal property to subject it by execution on a judgment against the purchaser for the purchase price thereof to the payment of said purchase ■ price, except only where the said property is in the hands of an innocent purchaser, for value, without notice of the existence of the claim for the purchase price. t:The general rule is, that property in legal custody is not subject to be seized by other judicial process; that when it is held under judicial process, it cannot be seized under other judicial process.” Bank v. Owen, 79 Mo. 431. But this general rule, where it is necessary, must yield, in order for the right given by this statute to be enforced. And so we hold that personal property held under an attachment can be seized under an execution on a judgment against the purchaser for the purchase price of the property, unless, indeed, the attaching creditor can be held to be an innocent purchaser for value, etc. The statute makes only one exception, that of an innocent purchaser, for value, without notice of the existence !of the claim for the purchase money. Creditors are not named in the exception. We cannot enlarge the exception. Creditors are not innocent purchasers. Before the court granted the motion of the Bolckow Milling Company, and made the order for the distribution of the proceeds of the sale of the flour in the hands of the shexUf, judgment had been duly entered in favor of said company against Young, the purchaser, for the purchase price of the flour. The said company -was then entitled to an execution on such judgment. The issuance of an execution was unnecessary, because the flour had [110] been sold under an order of the court and the proceeds were in the hands of the sheriff, and the law does not require a vain act. The order of the court for the distribution of such proceeds took the place of an execution. It is thus- unnecessary for us to discuss the question, whether, under this statute, personal property can be subjected to the payment of its purchase price by attachment. Attaching the property does ‘hot deprive the vendor of the right to subject it to the payment of its purchase price by execution on a judgment against the purchaser for the purchase price. With the concurrence of the other judges in the result, the judgment is affirmed.