Paine v. Hall Safe & Lock Co.

Campbell, J., delivered the opinion of the court. If the appellee was owner of the safe it should have interposed its claim in pursuance of § 1317 6f the code, and not having done so was precluded from claiming that the safe was not liable to be distrained for rent. Gibson v. Lock, 58 Miss. 298. But aside from this, the judgment should have been for the defendant on the facts. * Buder Bros, were “ traders ” in the meaning of § 1300 of the code, and “all the property, stock, money, and choses in action used or acquired in such business,” were, as to their creditors, liable for their debts by virtue of said section. Its language is plain and its meaning and purpose obvious. It first enacts that traders, and all of like kind, who employ signs, must by [180] the sign truly indicate the ownership, or else the property, etc., used or acquired in such business shall be liable to the creditors of him who transacts the business, and then, to meet the case of having no sign, it provides that he who transacts the business and has the property, and thus appears to be its owner, shall be treated as such, in favor of his creditors. Where a sign is employed it must not mislead, and where there is no sign he who appears to be owner from transacting business with it or acquiring it in his business is to be so held and treated in favor of his creditors. That is the simple scheme of § 1300. Its design is to promote honesty and secure justice, by precluding the assertion of secret claims of ownership against creditors of him who has been permitted to possess property in his business as a trader and appear to be its owner. Prior to the enactment of this section conditional sales of personal property of any ’ kind whereby the vendor retained the title, although the vendee had possession, were valid, where this separation of the title and possession did not continue for three years, without any writing or record. Ketchum v. Brennan, 53 Miss. 596. This is still the law, except as altered by the section under consideration. By it a change was made as to the class of persons contemplated by it, and while the former law as to conditional sales with all their incidents remains as it was as to the great body of the people, it was changed by this section as to all who fall under the designation of traders, and they are to be treated as the absolute owners of what they use or acquire in business, so far as its liability to their creditors is concerned. The evil of permitting a separation of title and possession was found to exist and bear its worst fruits among those called by the general designation of “ traders,” and hence the effort to correct it, as far as possible, by the just requirement of true signs, and in the absence of such indicia of ownership, by that springing from the possession, dominion, and control of the property. This may operate hardly in some cases, but that is a common incident of laws which are designed for their general effect, and are to be judged by that and not by particular instances. Reversed a/nd remanded.