Phelps v. Bemis

The opinion of the court was delivered by

The stag was attached as the property of one Ellison. Defendant had bargained it to Ellison for $45. Ten dollars was paid down; and the residue was to be paid in thirty days, or, as defendant testified, the trade was to come to an end, the stag to be returned, and the $10 forfeited. The court directed a verdict for the plaintiff.

*489The statute of 1872, No. 51, provides that “ no lien reserved on property sold conditionally . . . shall be valid against attaching creditors or subsequent purchasers without notice, unless the vendee of such property shall take a written memorandum . . . which memorandum shall be recorded.” No memorandum was made in this case, and the property was attached after the thirty days expired.

If, by the contract, Ellison had no right to purchase or redeem the stag, and no duty on his part to pay for the stag, and the defendant was the absolute and unconditional owner, and had no right to enforce payment for the stipulated price, then defendant “ had no lien on the stag as sold conditionally,” and Ellison had no interest in the stag. The testimony on the part of the defendant tended to show and prove that all • rights under the contract came to an end within the thirty days, and that this was purposely so, in reference to the statute, for if it continued a conditional sale after that, the law required a memorandum to be recorded. We think the case, under proper instructions, should have been submitted to the jury.

Judgment reversed, and cause remanded.