Collins v. Wilhoit

Ellison, J.

This action is replevin. Defendant, Wilhoit, is the constable who levied on the property. McComas is made a party defendant for the alleged reason that he was in possession of the property as agent of the constable. McComas was the judgment debtor of one Kindred. After becoming such debtor, plaintiff sold and delivered to him several head of hogs, on condition that they remain his, plaintiff’s, property till paid for. Kindred, without knowledge of such condition, had an execution levied on the hogs as the property of his debtor, McComas, and plaintiff brings this action claiming the hogs as his property.

The court refused the following declaration of law asked by defendant:

“ That if Collins sold the hogs in controversy to McComas, and delivered the possession of them to McComas, and at said sale it was agreed between them that the hogs were to be the property of the vendor, Collins, fmtil paid for, then said sale is void as against the creditor of the vendee, McComas, unless said condition as to the ownership was reduced to writing, acknowledged and recorded as provided by the law in cases of mortages of personal property.”

This instruction is based on the following section of the statute, 1879:

*589 ‘ ‘ Sec. 2505. Every sale made by a vendor of goods and chattels in his possession or under his control, unless the same be accompanied by delivery in a reasonable time, regard being had to the situation of the property, and be followed by an actual and continued change of the possession of the things sold, shall be held to be fraudulent and void as against the creditors of the vendor or subsequent purchasers in good faith, and no sale of goods and chattels where possession is delivered to the vendee shall be subject to any condition whatever as against creditors of the vendee or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed and acknowledged by the vendee, and recorded as now provided in cases of mortgages of personal property.”

It is evident that the instruction was refused under the authority of the following cases: Defiance Machine Works v. Trisler, 21 Mo. App. 69 ; Tufts v. Thompson, 22 Mo. App. 564 ; Knoop v. Nelson, 26 Mo. App. 303 . These cases hold that the first clause of the section refers-to creditors, both prior and subsequent, but that the latter clause, refers only to subsequent creditors. If this be the correct interpretation of the statute, the instruction was properly refused, as this case falls under the last clause of the section and the creditor is a prior creditor.

The first clause of the statute, prior to the revision of 1879, composed the whole section, and had been repeatedly construed by the supreme court to embrace both classes of creditors. By the revision, the last clause, which had been enacted in 1877, was embodied in the same section. It will be noticed that the language used in each clause, as to creditors and purchasers, is identical. Now it is an established rule of construction, that where words and phrases, the meaning of which in a statute has been ascertained, are, when used in a subsequent statute, to be understood in the same sense; *590 and “where the terms of a statute, which has received judicial construction, are used in a later statute, whether passed by the legislature of the same state or county, or by that of another that construction is to be given to the later statute.” Commonwealth v. Hartwell, 3 Gray (Mass.) 450 ; Bucknaboye v. Mottichmed, 32 Eng. L. & E. 84; Bogardus v. Trinity Church, 4 Sand. Chan. 633; Bigg v. Wilton, 13 Ill. 15 ; Adams v. Field, 26 Vt. 256 .

It would thus peem to be clear that both clauses should receive the same construction, and each be held to include both classes of creditors. The object of the statute was to prevent false appearances to the detriment of creditors, but a subsequent creditor is not alone subject to a fraudulent deception as to the ownership of personal property. It is quite true that a secret lien or condition, in favor of a vendor of property who puts it in the possession of his vendee, would be a fraud upon a subsequent creditor who should, on the faith of such property, permit the vendee to become his debtor. But a prior creditor may also, by such appearances on the part of his debtor, be lulled into a false security, may abstain from collecting or securing the debt; or, as is said in Coover v. Johnson, 86 Mo. 533 , he may be induced to alter his condition or incur needless litigation or expense.

The creditor involved in that case was a prior creditor and the supreme court, per Sherwood, J., defeats/ such creditor’s claim solely on the ground that he had* knowledge of the condition to the sale. There can be/ no question but that the court assumes this clause of the statute applies to prior creditors. The court usesu the following language, the italics being my own, “Here, so far as the attaching creditor was concerned, there was in fact no secret lien, no hidden trust, no false appearance, no concealed ownership ; nothing in short, *591 to induce him to alter his condition, incur needless litigation or expense, or which could in any manner oyer ate to his prejudice.”

We should content ourselves with reversing and remanding this case without more, were it not, that since the promulgation of Coover v. Johnson, the St. Louis court of appeals, in State to the use Nelson v. Green Tree Brewery, 32 Mo. 276 , without having attention drawn to it, have reiterated the rule formerly announced. Under such circumstances as the question is one constantly arising, we have concluded to transfer the cause to the supreme court for final adjudication.

The other judges concur.