A. M. McPhail & Co. v. Gerry

Lien Law. Conditional Vendor. Attaching Creditor with Notice. R. L. s. 1992. Deposition. Punctuation of Statute. 1. In the statute, R. L. s. 1992, relating to the Hen of conditional vendors, the words, “without notice,” refer to and qualify the words, “ attaching creditors,” as well as the words “ subsequent purchasers.” 2. Under the statute the rights of a conditional vendor are superior to those of an attaching creditor with knowledge of the lien, though the Hen was not recorded within thirty days. It is immaterial from what source the knowledge is obtained. 3. The punctuation of the original act, as passed by the legislature, governs instead of that of the printed copy. 4. When there is no exception to the report of a referee the court will not pass upon his ruling in regard to a deposition. 5. R. L., s. 1992, vendor’s Hen, construed.

Trespass for taking a piano on which the plaintiffs had a lien. Heard, December Term, 1881, Orange County court, on the report of a referee, Powers, J., presiding. Judgment pro forma for defendant. The referee reported that the plaintiffs, on the 7th day of June, 1876, sold and delivered to one'Mark S. Page a piano for the price of $300 ; that they took a note for the same, payable in installments of $25 each month, and reserved a lien on the piano, as follows: “ Which said piano is to remain the property of said McPhail & Co. until the above sum of $300 is paid in full; and the said McPhail & Co. have the right to take possession of said piano at any time on failure of any of the above payments; and all payments before made to be forfeited”; that, on the 18th day of July, 1876, the note and lien were recorded in the town clerk’s office of Bradford; that on the 24th day of October, 1876, the defendant caused the piano to be attached on a writ in his favor against said Page and as said Page’s property: that several other creditors of Page also attached the piano, executions issued, and the piano duly and regularly sold thereon ; and that a considerable amount of the note was due and unpaid at the time ot the attachment, but that the plaintiffs had not taken possession of the piano, although they attempted to do so on the day it was attached. On the question of the defendant’s knowledge of the plaintiffs’ lien the referee reported: “Before the defendant attached the piano as aforesaid he knew from said Page that plaintiffs had a lien thereon for the purchase money; but he thought the lien was not good, because not seasonably recorded. Page did not show defendant the lien, nor did he ever see it; but he had been informed and knew that it was recorded, but he never saw the record.” On the hearing it appeared that the plaintiffs had taken two depositions-, one earlier than the other, of Thankful C. Page. Only one was read. The other one had never been filed, nor used in evidence, but had been opened and the plaintiffs had it at the hearing. The defendant’s counsel asked the referee to order the deposition to be produced. The referee refused to make the order.* Notice of the lien answers all the purposes of a record. Kelsey v. Kendall, 48 Vt. 27. In the original engrossed bill there is a comma before the words “ without notice.” ■ This punctuation leaves no doubt that the legislature intended that the words “ without notice,” should apply to both “ attaching creditors ” and “subsequent purchasers.” Bugbee v. Stevens Bagtey, 53 Vt. 389 ; Whitcomb v. Woodworth, 54 Vt. 74, 544. Alabama and Iowa have statutes similar to ours. In both notice is equivalent to a record. Magee v. Carpenter, 4 Ala. 469; Smith $ Co. v: Zuchee, 9 Ala. 208, 921; Bearing v. Watkins, 16 Ala. 20; Be- • Verdal v. Malvóme, 25 Ala. 272; Boyd v. Beck, 29 Ala. 703; Me Guvern v. Haupt, 9 Iowa, 83 ; Allen v. Me Alla, 25 Iowa, 464; Jones Chat. Mortg. ss. 31, 317 ; 47 Iowa, 418; 51 Iowa, 655; 59 Ala. 503 ; 33 Vt. 252; 12 N. H. 839 ; 13 N H. 46; 8 Vt. 373. The notice, in order to be sufficient, must emanate from the party holding or claiming to hold the lien. R. L. s. 1069 ; Stevens v. Wrisley, 80 Yt. 661, 665, 701; Bank v. Drury,-35 Vt. 469. The record of the lien having been made more than thirty days after the delivery of the property, had no force. Bugbee v. Stevens cf* Bagley, 53 Yt. 389; 2 Watts, 78. The words “ without notice ” refer to and grammatically limit simply the words “ subsequent purchasers,” and not the words “ attaching creditors.” The intent of the legislature must have been to so amend the statute of 1870 as to make it comply with the general law and policy of the State relating to the sale of personal property and the accompanying change of possession. Daniels v. Nelson, 41 Yt. 161; Hart v. Bank, 33 Yt. 263 ; Perrin v. Heed, 35 Yt. 2. But if creditors are affected with notice, it must be actual. 3 Yes. 478 ; 19 Yes. 435 ; 1 Mod. 300 ; 31 E. L. & Eq. 89; Jones Chat. Mortg. s. 309 ; 19 Me. 167 ; 13 Met. 200. Burden on plaintiff to show sufficient notice. Whitcomb v. Woodworth, 54 Yt. 544.