Pash v. Weston

Adams, J. 1. samo: when conditional: notice. — The certificate of appeal contains the following questions: “ 1. . Whether the instrument set out in the defendant’s answer as Exhibit‘A’is sufficient to-meet , . ^ , n i the requirements ot section 1922 oi the Code, so as to impart notice to creditors or purchasers. 2. Whether the said instrument is sufficiently executed and acknowledged to impart notice to creditors and subsequent purchasers.” Section 1922 of the Code is .in these words: “No sale, contract or lease wherein the transfer of title or ownership of personal property is made to depend upon any condition shall [677] be valid against any creditor or purchaser of the vendee or lessee in actual possession, obtained in pursuance thereof, without notice, unless the same be in writing, executed by the vendor or lessor, acknowledged and recorded the same as chattel mortgages.” The meaning of this section doubtless is that where a sale, etc., is made of personal property, and the transfer of title is made to depend upon any condition, the condition shall not be valid against creditors, etc., unless the terms of the sale be expressed in writing, etc. In other words, creditors, etc., without aetual'notiee of the condition, may claim that the title passed to the vendee unless the vendor gives constructive notice of the condition in the manner provided. The sale, we think, is to be regarded invalid in no sense except as a conditional sale, but is to be regarded invalid as such in the absence of notice, actual or constructive. So far we presume that there is no question. Now the defendant, acting as agent of the Harris Manufacturing Company in seizing, the property, claims that the company did give constructive notice'of the condition in the sale to Montgomery, and that the plaintiff, who derives title by subsequent purchase through Montgomery, is affected: thereby. In our opinion the' position cannot be maintained. The instrument relied upon by the defendant was executed nearly two months after the sale had taken effect. There is neither averment nor proof that the instrument was ever delivered to Montgomery, nor did he ever sign it or become a party to it in any way. His title, whatever he had, was not derived through it, nor was he in possession in pursuance of it. It was wholly an ex parte paper, made after Montgomery’s right had attached, and, for anything which the record shows, made after the plaintiff’s right had attached. In our opinion the court erred in holding that it constituted constructive notice to the plaintiff. It may be that the sale was in fact conditional (though there is no averment to that effect), and that the plaintiff had actual notice of the condition. If so he could not set up his title .against the company. But no such question is presented. [678] The plaintiff avers that he is the absolute owner. This is not denied. The defendant merely claims the right of possession by virtue of a lien of which he alleges, in substance, the plaintiff had constructive notice. Some other questions have been argued as incident to the one decided, but the view which we have taken of the case renders the consideration of them unnecessary. Reversed.