Barton v. Groseclose

— This appeal is from an order dissolving an attachment. The plaintiff, Barton, commenced his aetion in the district court as the assignee of two claims against the defendant — one an ordinary promissory note, the other the usual combination form of promissory note and conditional sale contract. Upon the filing of the complaint the plaintiff duly and regularly procured the issuance of a writ of attachment .and caused certain of the property of the defendant to be attached, out of which to make any judgment that might be recovered against him. The defendant moved to dissolve the attachment on the facts disclosed by the complaint, and his affidavit in support of his motion. That motion was sustained by the district judge, and it is from the order made thereon that the appeal is prosecuted. On June 10, 1903, the Spaulding Manufacturing Company sold to the defend*230ant a buggy and received as payment therefor defendant’s promissory note, which note concludes with the following provisions: “I own in my own name one hundred and sixty acres of land in section -, town of -, county of "Washington, state of Idaho, which at a fair valuation is worth $1,500, on which there is no encumbrance except for $-. I also own $- worth of personal property over and above all exceptions. There is no judgment against me. I make this statement at the time of the signing of this note for the purpose of obtaining credit, and it is understood that the ownership of this vehicle shall not pass from the Spaulding Manufacturing Company until fully paid for, and no salesman has authority to make any agreement not on the face of this note when made.”

By the terms of this agreement, it is clear that it constituted a conditional sale, and that the title to the property remained in the Spaulding Manufacturing Company. (Mark Means Transfer Co. v. MacKinzie, 9 Idaho, 165, 73 Pac. 135; Harkness v. Russell, 118. U. S. 663, 7 Sup. Ct. Rep. 51, 30 L. ed. 285.) It is contended by appellant, however, that the vendor of the property, by assigning the note and contract which had been executed by the vendee, thereby waived his right to reclaim the property, completed the sale and vested the title in the vendee; It is contended, on the other hand, by the respondent, that the transfer of the note and contract carried with it the legal title to the property, and substituted the assignee of the contract to all the rights and remedies of his assignor. We have heretofore held that under the statutes of this state authorizing attachments, an attachment cannot issue to secure the purchase price of property where the title to the property has been reserved to the vendor until final payment should be made. (Mark Means Transfer Co. v. MacKinzie, supra. If the vendor of the property could, by selling the note and contract, transfer to his assignee all the property rights he had therein, then it would follow that the rule announced in the Mark Means Transfer case is applicable, and an attachment would not lie on behalf of the assignee. It must be conceded that when the *231vendor of property parts with possession, and at the same time reserves to himself the legal title to the property, and thereupon sells, assigns and transfers to a third party all of his rights and interests in and to the contract, that he is thereafter left without any interest either in the title or possession of the property or the contract. While this is true, the title to the property must necessarily rest somewhere— either, we take it, in the original vendee of the property or the assignee of the contract. To say that the title passed to the vendee of the property would be to deprive the owner of the legal title, to whom the purchase price had not yet been paid, of a valuable property right. It would amount to depriving him of the right of disposition of his property and cutting off the security which he had retained for the payment of the debt. We think the assignment of a contract like the one under consideration carries with it the legal title to the property and gives to the assignee of the contract all the rights and remedies enjoyed by his assignor, and that in such case an attachment will not lie until the property has first been exhausted. This position has been sustained by the following authorities: Ross-Meehan etc. Foundry Co. v. Pascagoula Ice Co., 72 Miss. 608, 18 South 364; Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1100; Standard Steam Laundry Co. v. Dole, 22 Utah, 311, 61 Pac. 1106; 6 Am. & Eng. Ency. of Law, 2d ed., 485; Myres v. Yaple, 60 Mich. 339, 27 N. W. 536.

It should be borne in mind that the security which a vendor, under one of these conditional sale contracts, has for the payment of the purchase price is not a vendor’s lien, as recognized by our statute. Under the provisions of section 3443, Revised Statutes, a vendo-'’s lien only exists on personal property so long as the vendor retains the possession. In these conditional sales the vendor almost invariably parts with the possession of the property, but stipulates with the purchaser that the title shall not pass until the purchase price is fully paid. The security which the vendor retains in such ease should not be confused with that of a vendor’s lien because he retains the title itself to the property and the *232right to pursue the property and repossess himself of it. In the Mark Means ease, supra, we said: “It occurs to us that plaintiff’s security was a higher class of security than either a mortgage lien or pledge. It was a reservation of the title itself with a right to take possession at any time condition should be broken.”

The order of the district court was made upon the correct theory of the law applicable to the case, and the judgment must be affirmed. It is so ordered. C^sts awarded to respondent.