Wurmser v. Sivey

Smith, P. J. This is an action of replevin. Plaintiff bases his right to recover upon a chattel mortgage executed by defendant to plaintiff to secure the unpaid balance of the purchase money upon a sale of some household goods sold by plaintiff to defendant. The uncontradicted evidence shows that there was default in the payments provided for by the mortgage. The non-payment of the debt, by the terms of the mortgage, gave plaintiff the right to the possession of these goods, and, after demand made therefor, this replevin suit was brought. The trial court, it appears from the instructions-given and refused, took the view that sections 5180- and 5181, Revised Statutes of Missouri of 1889, applied to any sale of chattels where a portion of the purchase money remained unpaid, and was to be paid in installments, notwithstanding, as in this case, the goods were sold and title conveyed to the purchaser, who executed a chattel mortgage to secure such unpaid installments. And further that plaintiff could not take the goods described in this mortgage without tendering or refunding to the purchaser the sum or sums paid by him after deducting a reasonable compensation for the use of such property, and as plaintiff had not made such payment or tender the jury were peremptorily directed to find for the defendant. Section 5180, Revised Statutes, just referred to, provides that in all cases where any personal property shall be sold to any person to be paid for in whole or in part in installments on condition that the same shall belong to the person purchasing the same whenever the amount paid shall be a certain sum,, the title to the same to remain in the vendor until such sum or any part thereof shall have been paid, such condition in regard to the title so remaining until such payment shall be void as to all subsequent purchasers [428] in good faith, and creditors, unless such condition shall be evidenced by writing executed, acknowledged and recorded as provided in eases of mortgages of personal property. And section 5181 provides that, whenever such property is so sold, it shall be unlawful for the vendor to take possession of said property without tendering or refunding to the purchaser the sum or sums of money so paid, after deducting- therefrom a reasonable compensation for the use of such property, which shall in no case exceed twenty-five per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed. Prior to the enactment of the foregoing statutory provisions it had been several times held in this state that the seller of personal property might by contract with the buyer reserve the title of such property in himself, until payment was made, and that such reservation would be valid against a bona ficle purchaser. Wangler v. Franklin, 70 Mo. 659; Robbins v. Phillips, 68 Mo. 100; Sumner v. Cottey, 71 Mo. 121. These sections were intended by the legislature to make a radical change in the law relating to the sales of personal property, and to prevent secret and unrecorded transactions and contracts of sales from being used to the detriment of creditors of or purchasers from the vendee of personal property apparently the owner thereof. In this case there is no creditor or purchaser of the vendee concerned. The controversy is between the parties to the mortgage. That the case does not come within the purview of the statute already referred to, is as plain as anything can be. Here, the plaintiff in the usual and customary way sold the goods in question [429] to the defendant, the latter at the same time paying part of the purchase price, executing a mortgage on the goods so purchased to secure the deferred payments. The title was not to remain in the plaintiff until all of the installments were paid, but it passed to the defendant by the very nature of the transaction. If this were not so, why did defendant execute the mortgage to plaintiff covering the identical goods? If the goods were not his, why mortgage them to plaintiff? The statutes (sections 5180, 5181) have no application to a case like this where there was an absolute sale by the plaintiff to defendant of the goods, and' a mortgage executed back by the latter to the former to secure the purchase price. Daily v. Mfg. Co., 88 Mo. 301; 14 Mo. App. 597. This case is not different from that where A sells a horse to B, and the latter pays the former a part of th'e purchase price and executes a mortgage to him to secure the deferred payment or payments. The contract of sale, the payment of part of the purchase money, and the execution of the mortgage back to secure the deferred payments, are all parts of the transaction, executed simultaneously and before the horse is-taken out of the stable. This is the usual way of conducting such transactions. It is likely the plaintiff did not actually deliver the goods to defendant until the mortgage was signed, but in the contemplation of the parties the sale was effected first and was so regarded by both of them. And such a transaction we feel bound by law to recognize and uphold as valid. It results that the judgment must be reversed and the cause remanded. All concur.