146 S.E. 521 | W. Va. | 1929
As the same principles of law apply to cases Nos. 6346 and 6345, they will accordingly be considered together.
The first information the seller had of the removal of the machinery to Greenbrier county was from a letter written to it by the buyer dated October 4, 1926. The first information the defendant had of the claim of the seller was from a letter written to defendant by the seller dated October 5, 1926. The seller filed the contract in Greenbrier county on October 7, 1926.
This is an action of detinue to recover the machinery. At the time the action was instituted, $1,470.34 of the purchase price was due and unpaid to the seller.
After the conditional sales contracts in these cases were recorded in Pocahontas county, as directed by section 6, Chapter 99 A, Code, that record was notice "to all the world" of the seller's rights. Auto Sales Co. v. Yost,
Counsel contend that the failure of the seller to enforce collection of the several amounts due it for more than two years, and its failure to keep informed as to the location of the machinery are circumstances precluding the enforcement of its rights against the defendants, as innocent purchasers. This being an action at law, no period of inactivity less than that prescribed by statute will bar the seller. Besides, if an extension of the time of payment should be held to militate against a seller in such case, then the seller would make no such indulgence, and hardships not contemplated or justified by the law would ensue to the buyer. Constant, or even occasional inquiry as to location of the machinery was not incumbent upon the seller herein, as the buyer had agreed not to remove the machinery from Pocahontas county. The seller could rest on that promise in the absence of information reflecting on the good faith of the promisor. And while the defendants had no actual notice of the reservations of title to the machinery, they are not entirely blameless, they are not "innocent" under the law, in these transactions. In accepting *587
possession by the buyer as proof of ownership, they did not use the caution required by law. Possession without ownership is had in a number of instances. Possession alone therefore does not denote absolute title; it is merely an indicium of title. In relying on the possession of the buyer without further investigation of the title, the defendants took the risk that such possession might be merely subordinate and not absolute. "Whether the possessor of property has borrowed it, or hired it, or purchased it, and what is the nature and extent of his right to it should be ascertained by one who proposes to deal with him as to such property." Ketchum Cummings v. Brennan,
Counsel contend that the filing of the contracts in Greenbrier county on October 7, 1926, is not a compliance with the statute of 1923, which requires recordation instead of filing. Recordation of such a contract is designed to give notice, constructive or actual. If the party to be affected has actual notice, the very purpose of recordation is served. Brown
v. Woody,
The judgment of the circuit court is accordingly reversed in each case, and respective judgments entered here for the plaintiff.
*588Each case reversed; judgments here.