Kane v. Manley

Ellison, J. Plaintiff occupies the position of judgment creditor, for part of the purchase price of certain personal property purchased by defendant. Plaintiff had execution issued and levied on such personal property, when the claimant herein interposed and claimed the property.. His claim is based on a chattel mortgage on said property, past due. The mortgage was executed, delivered and recorded before the execution was issued, but the mortgagee knew that the purchase price of the property was unpaid. Plaintiff claims priority over the claimant by virtue of section 4914, Revised Statutes, 1889, which reads 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 the hands of an innocent purchaser, for value, without notice of * the existence of such prior claim for the purchase money.” The circuit court found for the mortgagee. By reference to the cases of Straus v. Rothan, 102 Mo. 261, and Corning v. Rinehart, 46 Mo. App. 16, it will be seen that in “so far as liens or priorities are concerned, creditors for the purchase price of personal property stand on terms of exact equality with general creditors. Between them the prior lien holds as it would if the statute was not in existence. ’’ The statute, as now construed, is one of exemption and does not determine priority of liens. And though two creditors have a claim against a common debtor, one as a creditor for the purchase price of personal property, and the other as an ordinary general creditor with knowl [48] edge of the purchase price being unpaid, yet if the-latter obtain the first lien, either by execution or attachment, he will prevail over the creditor for the purchase price. If an ordinary general creditor may obtain priority by use of diligence in obtaining the first lien, why has he not that priority by obtaining a prior mortgage? He has his claim upon which he may attach, or he may sue and obtain judgment and levy an execution. In either case, if he is ahead of the creditor for the purchase price, he obtains priority, though he knew the purchase price was unpaid. But suppose in such case the debtor should say to him: “Do not put me to the expense of court costs; I will give you a mortgage on the property to secure your claim.” Must the creditor refuse this and go through the useless form of attaching, or obtaining judgment and issuing an execution? Where one may obtain priority of lien by forcing it in a lawsuit, why may he not obtain it by voluntary act of the debtor? But plaintiff insists that the claimant under the mortgage is a purchaser of the property, and having had notice of plaintiff’s claim, that he is a purchaser with notice, as stated in the statute aforesaid. This, we think, is not the meaning of the statute, under the construction which now obtains. A mortgagee may, under many conditions and circumstances, be properly termed a purchaser. But in the sense of the present statute, he should rather be regarded as mortgage creditor, his lien attaching earlier than plaintiff’s. We referred to the question here decided in Corning v. Rinehart, supra, and in Finke v. Pike, 50 Mo. App. 564, we decided the question. We are content with that decision and would have done no more than refer to it, but for the strenuous effort which counsel has made on a line in opposition to that case. The judgment is affirmed. All concur.