Champenois v. Tinsley

Oali-ioon, J., delivered the opinion of the court. On March 8, 1905, one Cunningham bought a mule from appellant, and gave his note for the purchase price, -which stated that the title did not pass, but remained in Ohampenois until payment. Contemporaneously Cunningham executed a trust deed to secure the payment to the payee, which trust conveyance included the mule and -also other property. Before this instrument was recorded, Cunningham sold the mule to an innocent purchaser, and through three or four successive sales it came to the Tinsleys, the appellees. The note not being paid at maturity, the mule was taken from the Tinsleys by the trustee without objection, sold by him, and bought by the appellant. The Tinsleys brought replevin, and the court sustained them, and decided that the mule was their property. We do not concur in this conclusion. The doctrine of implied waiver in matters of this sort can only be invoked to defeat implied liens of,vendors, liens given by courts of equity in the absence of express contract. Where there is express contract that the title be retained in the vendor, it is not waived by him by implication because he took the security of a trust deed. 29 Ency. (2d ed.) 776, and note 2, We have not seen a case contravening this view. Reversed and remanded.