Kane v. Manley

1. Execution: purchase price: mortgage. If two creditors have a claim against a common debtor, one for the purchase price of personal property and. the other as an ordinary general creditor with knowledge of the purchase price being unpaid, the latter, if he obtain a first lien by execution, attachment or mortgage on personal property, will prevail over the creditor for the purchase price. 2.--: purchaser: mortgagor: statute. A mortgagor with knowledge that the purchase price of the mortgaged property is not paid is not a purchaser within the sense of section 4914, Revised Statutes, 1889.

Appeal from the Jasper Circuit Court. — Hon. W. M. Robinson, Judge. (1) Personal property is subject to execution on a judgment for the purchase price, except in the hands of an innocent purchaser for value, without notice of the claim for the purchase price. 1 R. S., sec. 4919; Rhodes v. Parker, 79 Mo. 88; State to use v. Mason, 96 Mo. 128; Boyd v. Ward, F., S. db C. Co., 38 Mo. App. 211; Woolfolk v. Kemper, 31 Mo. App. 423; Milling Co. v. Turner, 23 Mo. App. 103; Straus v. Rothan, 102 Mo. 261; Corning v. Medicine Co., 46 Mo. App. 16; Taylor v. Smith, 47 Mo. App. 143; Finite d? Nasse v. Pike, 50 Mo. App. 566; Lippman v. Campbell, 53 Mo. App. 122. While the statute does not create a lien in favor of the vendor of personal property over the lien acquired by other prior attachment or execution creditors, it does give him a right to levy execution on a judgment for the purchase price of personal property in the hands of a purchaser or a person who had acquired it from the vendee with notice of the vendor’s claim. Straus v. Rothan, supra. A mortgagee of personal property is a purchaser. Steadman v. Hayes, 80 Mo. 323; Cass Co. v. Oldham, 75 Mo. 52; Frisbee v. Thayer, 25 Wendell (N. Y.), 399; 2 Wait’s Actions and Defenses, p. 202, sec. 24; 4 Wait’s Actions and Defenses, p. 566, sec. 6; Hesserv. Williams, 36 Iowa, 152; 2 Hilliard on Mortgages [3 Ed.], sec. 40, p. 422. A chattel mortgage is more than a mere lien. It is a transfer of the property, as security, and vests the legal title in the mortgagee, who becomes absolute owner on default. Jones on Chattel Mortgages [4 Ed.], p. 1, sec. 1; p. 10, sec. 8; Conard v. Ins. Go., 1 Peters (H. S.), 441; Jackson v. Cunningham, 28 Mo. App. 361; Herman on Chattel Mortgages, p. 29, sec. 15; 1 Cobbey on Chattel Mortgages, sec. 4, pp. 5-8; 3 Am. & Eng. Encyclopedia of Law, pp. 175, 176 and 200; Tiedeman on Sales, secs. 221 and 222; Pease v. Iron Go., 49 Mo. 126-128; Johnson v. Houston, 47 Mo. 229; Vanstone v. Goodwin, 42 Mo. App. 46; Hampton v. Seible, 58 Mo. App. 184; 1 "Wait’s Actions and Defenses, p. 65, sec. 3; 4 Wait’s Actions and Defenses, pp. 319, 320, secs. 3, 4, and pp. 331, 332, sec. 11. “Purchase” is acquisition by contract between the parties and a “purchaser” is defined to be one clothed with the legal title. Kohl v. U. S., 91 U. S. 374; Hampton Seible, 58 Mo. App. 182. (2) The right to levy for the purchase price is in the assignee of notes taken therefor. State to use v. Ora-hood, 27 Mo. App. 498; Sloan v. Campbell, 71 Mo. 387; Bank v. Robidoux, 57 Mo. 450, 451; Bank v. Abernathy, 32 Mo. App. 222; Hagerman v. Sutton, 91 Mo. 531, 532; Logan v. Smith, 62 Mo. 459; Mayes v. Robinson, 93 Mo. 122. The beneficiary in the deed of trust is the- real party in interest and notice to the officer and the agent of the beneficiary binds the corporation and the claimant. Johnson v. Hotiston, 47 Mo. 230; State to use v. Koch, 47 Mo. 584; Wade on Notice [2 Ed.], secs. 683&, 685-687, p. 391; Chouteau v. Allen, 70 Mo. 340; Hayward v. Ins. Co., 52 Mo. 187-192; Meier v. Blume, 80 Mo. 183,184; Livermore v. Blood, 40 Mo. 51; Bergman v. Railroad, 104 Mo. 86. The beneficiary in the deed of trust, and the real party in interest, being a foreign corporation, can not prosecute this claim by itself or the claimant as trustee because it is not authorized to loan money by its charter and is forbidden by the laws of this state. Acts of 1891, sec. 1, p. 75, and sec. 3, p. 76; University v. Jordan, 29 Mo. 68; Railroad v. Winlder, 33 Mo. 360; State to use v. McKellop, 40 Mo. 185;- Rogers v. Tuclcer, 94 Mo. 352; State to use v. Koch, supra; Johnson v. Houston, supra; Herman on Chattel Mortgages, p. 182, sec. 83; Jones on Chattel Mortgages [4 Ed.], p. 544, sec. 493; Wine Go. v. Rinehart, 42 Mo. App. 182, 183. (1) “The vendor can not follow property beyond his vendee, except in the hands of a purchaser with notice.” Corning v. Rinehart, 46 Mo. App. 16. And the first five cases cited by appellant in support of his statement are expressly overruled by the case of Straits v. Ro.than, 102 Mo. 261. (2) We admit that under the old decisions of the courts, appellant’s contention would be correct, but the cases of Corning v. Rinehart, 46 Mo. App. 16, and Straus v. Rothan, 102 Mo. 261, overrule all the old cases and fully sustain the action of the circuit court. (3) The case from appellant’s construction is whether an execution for purchase money will hold the property as against claims of mortgagee, claiming under a mortgage duly signed, acknowledged and recorded. This question is settled by the cases above cited, and Finite & Nasse v. Pilte, 50 Mo. App. 564; Zweigardt v. Birdseye, 57 Mo. App. 462. (4) The claimant was not a purchaser in the sense that the word is used in the section of the statute under which appellants claim, but is a “lienor taking precedence in accordance with the time of his lien.” Corning v. Rinehart, supra. (5) And a chattel mortgage is a prior lien to that of an execution for purchase price, even though the mortgagee knew at the time his debt was created that the property had not been paid for. Finite & Nasse v. Pike, supra.