Ketchum v. Brennan

Campbell, J., delivered the opinion of the court. The chief question in this case is this : A. delivers personal property to B. under a contract, not recorded, that B. shall pay the price by instalments, and that until such payment in'full the title shall not vest in B. but shall remain in A. Before full payment by B., he sells and delivers the property to C., who has no notice of the terms of the contract between A. and B., but buys the property on the faith of B.’s possession. Does C. acquire title, as against A., or can A. recover [607] the property from C., after breach of the condition on which title was to vest in B. ? Reason and the overwhelming weight of authority pronounce in favor of the right of the vendor in such conditional sale to recover his property in the case stated, either from his vendee or a purchaser from his vendee. Who has not title, cannot confer it. In the case stated, the vendee has no title until he performs the condition on which title is to vest in him. Until payment of the price, by the express terms of the contract the title is in the vendor. No law forbids such a contract, which, being valid, determines the rights of the parties. A buyer must beware of purchasing from one who has not title. Possession is not title. It is prima fade evidence of title, but nothing more. A-buyer should not content himself with prima fade title. It cannot avail him as against the title. It will, until the presumption arising from possession is removed ; but when the prima fade title is destroyed by proof that, while title seemed to be in the possessor, it was in truth in another, the prima fade title must yield to the actual title. A buyer may trust to appearances; but if they prove false and delusive, he takes the risk, and must abide the result. Until possession shall be made conclusive evidence of title, a buyer must be held to take the risk that the prima fade title of his vendor, from possession, may be destroyed by the truth of the case. Whether the possessor of property has borrowed it, or hired it or purchased it, and what is the nature and extent of his right to it, should be ascertained by him who proposes to deal with him as to such property. Possession of personal property by the seller, after an absolute sale, is only prima fade fraudulent, and is explainable, and the title of the vendee is upheld, when the continued possession of his vendor is explained so as to repel the presumption of fraud. The legislature has not made possession, short of three years, without record notice of its character, evidence of title in the possessor as to creditors or purchasers, and the courts should not do so. Code, § 2893; Mount v. Harriss, 1 S. & M. 185; Lewis v. Gilmer, 3 S. & M. 560 ; Patton v. McCane, 15 B. Mon. 555. Undoubtedly, as possession is prima fade evidence of title [608] the burden is on the vendor to show the condition of the sale, and that it has not been complied with, so that his right to possession has accrued. But when he does show this satisfactorily, and he has not in any way waived the condition, nor done or suffered any thing to mislead a purchaser from his vendee, his right, as reserved by the contract of sale, must be protected. Story on Sales, §§ 313, 457 a, and cases cited. The Supreme Court of Kentucky has overruled the case of Patton v. McCane, ubi supra, but we prefer the reasoning of the earlier case. In the case at bar the plaintiff beiow, recognizing that the burden was on him to show the condition on which the title of the property was to vest in his vendee, and that it had not been performed, attempted to do this, but failed as to non-performance of the condition, because it does not appear that the payment made by his vendee with the note transferred as payment was not valid. The evidence fails to show either that the representations on which said note was accepted as payment were untrue, or that the security for the note was not ample, even if it was not the paramount claim. It is not shown that the deed of trust made by Edgar for Taylor is older than that for the security of the note.transferred to the plaintiff, as payment by his vendee. The contract of sale in this case was in writing, and should have been produced, or its non-production accounted for, but it was established by secondary evidence. It does not appear that the plaintiffs in error made and saved their objection to this, so as to avail of it here. Objection should have been made to it on specific grounds, when offered. The plaintiff below made demand of his vendee for performance of the condition of the sale ; and, upon his failure, as the plaintiff claims, rescinded the contract, by tendering to his said vendee all he had paid him on said purchase, and demanded a return of the property. The vendee having sold and delivered the property, the plaintiff demanded a return of the property from said second vendees, and, upon their refusal to surrender it, brought an action of replevin against them for it. A rescission of the contract by the plaintiff below was a condition precedent to his right to sue for the [609] property; and, to rescind, it was his duty to return or offer to return to his vendee what had been paid on the contract of sale. This he did. Story on Sales, § 427, note 4 ; Story on Sales, § 457, note 2. If his vendee had kept the property, and the action was against him, the court might have required the plaintiff to bring into court the money he tendered him; but as the tender was to the vendee of the plaintiff, and the action is against others, who are strangers to the contract of sale made by the plaintiff, the court rightly overruled the motion to require the plaintiff to pay the money into court. He had tendered the money and the Edgar note to his vendee, and that was all he could do or was required to do in this respect. The third instruction for the plaintiff below should not have been given. The verdict should have found the value of the different articles of property separately. The judgment against Mrs. Cummings, a married woman, is not void on the ground that she is a married woman, and is not shown to have separate property. The writ of replevin is against her and another. They had the property in possession, and when it was seized by the sheriff under the writ of replevin, they gave bond, and had the property restored to them, under § 1580 of the Code. The married woman had the right to execute such a bond (§ 1781 of the Code), and, as a legal consequence, she is subject to judgment upon it against her and the other obligors. The motion for new trial should have been granted, and the judgment is reversed, and cause remanded for a new trial.