Burkhalter v. Mitchell

Cook, J., delivered the opinion of the court. This is an action of replevin instituted by appellees against appellant to recover possession of a mule. There was a verdict and judgment for plaintiffs in replevin, and defendant appeals. On the 7th day of February, 1908, appellant, W. A. Burkhalter, who was a customer of Mitchell & McLendon, merchants doing business at Enid, applied to them for money with which to purchase a mule, stating the price at which one could be obtained from his cousin, Pleas Burkhalter; Mitchell, acting for the firm, agreed to let him have one hundred twenty dollars with which to purchase the mule, and prepared and appellant signed a note for one hundred thirty-two dollars to cover the principal and interest, in which note the title to the mule was retained, whereupon Mitchell issued a check, probably payable to the appellant, for the one hundred twenty dollars, which he, appellant, delivered to Pleas Gfurkhalter and received the mule. The note was in words, etc., as follows: “$132.00. Enid, Miss., 2/7/1908. Nov. 1st after date I promise to pay to Mitchell & McLendon at Grenada Bank, Grenada, Miss., one hundred thirty-two and no/100 dollars, with ten per cent, interest per annum from maturity till paid. If this note is placed in the hands of an attorney for collection, the makers and endorsers hereof agree to pay the holder hereof an attor-. ney’s fee of ten per cent, upon the amount due, demand, protest and notice waived, for one mouse-colored mule, three years old, title remaining in Mitchell & McLendon until this note is paid. W. A. Burkhalter. ’ ’ It is contended by appellant that the relationship between appellant and appellees was that of debtor and creditor, and at most the note created an equitable mortgage, which could only be enforced by resort to a bill in equity for the foreclosure of same, and in no event was appellee entitled to the possession of the mule. [96] Payne v. Parker, 95 Miss. 395, 48 So. 838, is cited to sustain this contention. In this case the alleged conditional sale rested in parol, and the contest was not between the alleged conditional seller and conditional buyer of the property in controversy, but between the alleged seller, or owner, and the trustee of a deed of trust executed to secure a bona fide indebtedness of the alleged purchaser of the property. Neither the cestui que trust nor the trustee had any notice of the conditional sale. This court merely held that as between the trustee and the alleged conditional seller the alleged sale and retention of title was at most a mortgage of which the trustee had no notice, actual or constructive. In the instant case the contest is between the maker and the payee of the note, which upon its face shows that the money the maker promised to pay was the purchase price of the mule in controversy, and that the title to .same should remain in the payees until the note was paid. It is the settled law of this state that contracts of this kind are enforceable even against innocent purchasers for value without notice, where there is a bona fide and actual conditional sale. The parties to this contract agreed to treat the transaction as a conditional sale, and for the purposes of the contract the mule was the property of the payee, and in case the promisor did not pay the borrowed money when due, it was the understanding that the firm advancing the money would have the right to take possession of the mule and enforce the payment of the money remaining unpaid. We know of no rule of law, or principle of public policy forbidding this sort of contract, and we can see no reason why it should not be valid and binding on the parties thereto. Indeed, it seems to us that good faith and good morals demand that the agreement between the parties should be enforced by the courts.' Affirmed.