Partlow v. Lickliter

Whittle, J., delivered the opinion of the court. The salient points of this case are as follows: On 'December 17, 1901, a writ of fieri facias came into the hands of the Sergeant of the city of Staunton, issued upon a judgment confessed that day, in the Hustings Court of that city, by William E. Liclditer in favor of Ella E. Liekliter. The execution was levied on personal property in the possession, — 633 — and used in the business, of William F. Lickliter, but to which Fannie L. Partlow asserted title by virtue of a bill of sale executed 'by "William F. Lickliter to her, and recorded prior to the confession of judgment. Upon the petition of the officer, and in accordance with the provisions of section 2999 of the Code, the parties were convened at the January term, 1902, of the Hustings Court for the determination of their conflicting rights and claims in respect to the property in controversy. The trial of the case was had 'before a jury upon the following issues directed by the court: “Whether or not, at the time the execution of Ella F. Lick-liter against William F. Lickliter was levied upon the goods mentioned in the officer’s return thereon, the said William F. lickliter was transacting business as a trader, with the addition of the words ‘factor,’ ‘agent,’ and ‘company’ or ‘Co.,’ and failed to disclose the name of his principal or partner, by a sign in letters easy to be read, placed conspicuously at the house where such business was transacted, and also by notice published for two weeks in a newspaper printed in the city of Staunton; or if said William F. Lickliter transacted such business in his own name, without any such addition, and acquired or used said goods in said business.” In the interval between the levy of the execution and trial of the issues above named, Fannie L. Partlow obtained an injunction from the judge of the Circuit Court of Augusta county, certified to the Hustings Court of the city of Staunton, to which court the 'bill was addressed, enjoining William F. Lickliter from collecting certain accounts and notes mentioned in the bill, from negotiating the same, and from interfering with the property and business in question. The Sergeant and Ella F. Lickliter were also enjoined from taking possession of the property or business. The bill was not a bill of interpleader, but charged that the — 634 — officer was threatening to interfere with and take possession of the business and property. Ail the defendants answered the bill, and, upon notice, the Hustings Court dissolved the injunction. On the trial of the issues before the jury, the record of the injunction proceedings was introduced in evidence, and was, in that aspect alone, incorporated by bill of exceptions into the record now before this court. By their verdict the jury returned a negative response to the first enquiry submitted; but upon the second issue rendered the following verdict: “We, the jury, find that William F. Lickliter did transact the business on Greenville avenue, in the city of Staunton, in his own name, as a trader, and was transacting such business in his own name at the time of the levy of the execution of Ella F. Lickliter, on the 11th day of December, 1901, and did acquire and use said property levied upon in said business.” There was :a motion on behalf of Fannie L. Partlow to set aside the verdict as contrary to the law and evidence, which motion the court overruled, -and rendered judgment upon the verdict in accordance with the provisions -of section 2-998 of the Code. The case is here upon writ of error to that judgment. It is also sought, upon this record, to review and reverse the order of the Hustings Court dissolving the injunction in the chancery cause. To that end there is a separate petition, upon which an appeal was granted by one of the judges of this court. Of that branch of the case it is sufficient to observe that the record certified by the clerk of the lower court does not purport to be the record of the chancery cause, in which the appeal is pending, but the record of the law case, in which the' chancery proceedings were interpolated as part of the evidence. This attempt to review, or attack collaterally, the order of a court in a cause, the record of which is only 'before this court — 635 — as evidence in another case, is not permissible. Spotts v. Com., 85 Va. 531, 536; Powers v. Carter Coal & Iron Co., ante p. 450. The appeal in the chancery cause must, therefore, be dismissed, as having been improvidently allowed. The issues referred to were regularly submitted to the jury upon correct instructions, the verdict is sustained by the evidence, and there was no error in the refusal of the lower court to set aside the verdict. The remaining question for decision is whether the second paragraph of section 2877 of the Code applies to a case in which the title of the owner of the property levied on is evidenced by a recorded •bill of sale. The language of the provision is: “Or if any person transact such business in his own name, without any such addition; all the property, stock, and ohoses in action acquired or used in such business shall, as to the creditors of any such person, be liable for the debts of such person.” It is insisted that if the statute be held applicable to such case, it is in conflict with section 2465, amended, Acts 1899-1900, p. 89. That section occurs in chapter 109 of the Code, the Registry Statute, which provides for the recordation of muniments of title in general, and of sundry other transactions; affecting the title to property, valid between the parties, but declared to be void as to purchasers for valuable consideration without notice and creditors, until and except from the time that they are duly admitted to record. Section 2877 falls in a different category. It is found in an independent chapter, which deals with á restricted class— partners, partnership associations, factors, agents, and traders— and was passed in the interest of trade and commerce. It operates chiefly upon shifting stocks of goods, wares, and merchandise, bought for the express purpose of daily indiscriminate sale, and constantly changing hands, property difficult of accurate description, and impossible of continued identification, through — 636 — the medium of the registry laws. To undertake to apply those laws to that class of citizens, and to that species of property, if their enforcement were practicable, would operate as an embargo on trade. Other mischiefs and inconveniences, intended to be prevented by the statute, are pointed out in the recent cases of Hoge v. Turner, 96 Va. 624, and Edmunds v. Hobbie Piano Company, 97 Va. 588, in which section 2877 is construed. On the other hand, the section affords the true owner simple and effectual means of protecting his property (provisions which would be quite unnecessary if he is already protected by recording his title). In the case of Hoge v. Turner, supra, in discussing the subject of ownership, the court said: “The language of the statute is plain, explicit, and imperative. It leaves no room for exception or qualification. If any person, as is alleged in this case, transact business as a trader in his own name, with the addition of the word ‘agent,’ or in his own name, without such addition, and fail to comply with the provisions of the statute, it makes all the property, stock, and choses in action required or used in such business absolutely liable for his debts, whether contracted in the particular business or not, and without regard to knowledge by the creditor of the principal, if principal there be. Knowledge, or want of knowledge, plays no part in the application of the statute. That is an immaterial matter.” The conclusion from that statement of the law is irresistible, that knowledge, or notice of ownership, actual or constructive, will not exempt the property from liability for debts of the party in possession and conducting the business. To hold otherwise would be to engraft upon the statute an exception not warranted by the language, and tend to defeat its manifest object. The case of Edmunds v. Hobbie Piano Company, supra, is relied on to sustain the contrary view, but the decision is not — 637 — susceptible of tbat construction. It is true, in describing tbe status of some of tbe property involved in tbat litigation, tbe fact is adverted to tbat it was consigned to tbe Hobbie Piano Company for sale under written contracts wbicb were not recorded. But 'tbe liability of tbe property for tbe debts of tbe defendant company was not placed upon tbat ground, nor was tbe language there employed intended to overrule or modify tbe doctrine announced in tbe previous case in tbat particular. It follows from tbe foregoing views tbat there is no. error in the judgment complained of, and it must be affirmed. Affirmed.