Cardinal v. Edwards, 5 Nev. 36

Cardinal v. Edwards

5 Nev. 36 | Nev. | 1869

By the Court,

Lewis, C. J.:

The agreement entered into between the plaintiff and Archam-beauld on the thirty-first day of May and which ivas afterwards on the sixth of July reduced to writing, was simply an executory contract of sale, to be executed or completed when the stipulated payments were made by the latter. That it ivas not the intention to transfer the title from the plaintiff to Archambeauld is a fact which admits of no doubt whatever, if the written instrument itself is to be received as evidence of the intention. The plaintiff by it “ contracts, promises, and agrees to sell, transfer, and convey to the party of the second part” (Archambeauld) the property in question, “ as soon as he shall have paid therefor,’.’ which he agreed to do in installments, as follows: Two hundred dollars on demand, one hundred dollars on the last day of July, and one hundred dollars on the last days of August, September, and October. Here is certainly no present sale or transfer of title. It is as clearly an executory contract of sale as language could have made it. The contract, however, further provides, that the party of the first part *41(Cardinal) “ hereby agrees to let the said party of the second part have the privilege of using and working the said wagon, animals, and harnesses, until such time as he shall be in default in making any of the stipulated payments — the said party of the second part keeping the said property in good working order and condition. at his own cost and expense, and without charge against the first party. But this instrument is not intended to affect or in any manner lessen or impair the title of the said first party to the said property, so long as any portion of the said sum of six hundred dollars shall remain due from the party of the second part.” By this latter clause of the agreement, Archambeauld had the right of possession of the property; but that right was subject to the condition of payment of the price at the specified times. There was certainly no transfer of the right of property by the instrument; and we apprehend the mere delivery of the possession to be held only upon condition could not operate to invest him with it. He was not even to have the possession if he failed to make payments of any of the installments of the purchase money. At the time this suit was brought he was in default, and had been for nearly a month. The title to the property remaining in Cardinal, it was not subject to levy and sale upon execution against Archambeauld. If Archam-beauld ever had any interest which’ could be so taken, it was simply the right of possession until the last day of July, at which time there was a default in the payment of the installment then due. At that time, if not before, Cardinal became reinvested with the right of possession, and as this action was not commenced until the seventeenth of November — the day when the property was taken upon execution by the defendant — it is clear that the plaintiff should recover. If the transaction between Cardinal and Archam-beauld were treated as a conditional sale, which is certainly the most favorable view for the defendant which can possibly be taken of it, still there can be no doubt of the plaintiff’s right to recover: for it is a rule, as firmly established as any elementary principle of the law, that a conditional sale passes no title to the vendee which can be taken by his creditors until the performance of the condition, unless these be a waiver of the condition by an absolute and unconditional delivery of the property. (Strong v. Taylor, 2 Hill, *42326; Herring v. Poffock, 15 New York, 409; Barrett v. Pritchard, 2 Pick. 512; Coggell and Harfer v. New Haven Railroad, 3 Gray, 545; Hart et al. v. Carpenter, 24 Conn. 427; 33 N. Hamp. 66.)

These cases are directly in point, and decisive of this branch of the case. But it is contended that Sorrensen, the plaintiff in the execution against Archambeauld, had under the statute of this State a lien on the property for the sum of two hundred and sixty-eight dollars, and the right to hold possession and sell the same to satisfy such claim. The statute referred to declares, that “ any ranchman, or other person or persons, keeping corrals, livery or feed stables, or furnishing hay, grain, pasture, or otherwise boarding any horse or horses, mule or mules, ox or oxen, or other animals, shall have a lien upon and retain possession of the same, or a sufficient number thereof, until all reasonable charges are paid, or suit can be brought and judgment obtained for the amount of such charges, and execution issued and levied on said property.” It is true, under this statute, Sorrensen might have had a lien upon the animals, and held possession of them for the feed furnished’while they were under Archambeauld’s control — had he claimed such a right; but instead of doing so. he relinquished the possession, or rather, allowed Archambeauld to take them away without interposing any objection, or even having claimed the right or declared his intention to hold them for his charges. A voluntary relinquishment or surrender of the possession always destroys the lien. (2 Kent’s Commentaries, 887; 1 East, 4; 7 East, 5.)

That Sorrensen was not present when the animals were taken away can make no difference, for he had never pretended to claim a lien on them, and had always allowed them to be taken away every morning before as upon the last. Had he intended to claim a lien upon the property he should have made it known in some way. In fact nothing is clearer than that he had no intention of claiming such lien until he ascertained that Archambeauld had absconded and the plaintiff obtained possession of the animals. He cannot, therefore, say that they were taken from his possession by fraud, or force, or against his will. Had it been his will to hold possession he undoubtedly could have done so. So, too, unless the *43statute changes the old rule, which it does not seem to do, the fixing^ a future time of payment as was done in this case, Archam-beauld having ágreed to pay the charges on the first of each month, destroyed Sorrensen’s right of lien. (2 Kent’s Commentaries, 886, 882; 4 Barn. & Aid. 50.) As the plaintiff was the owner, and in the possession of the property at the time it was seized under the execution against Archambeauld, it was unlawfully taken, and he is entitled to recover it. The judgment was right and must be affirmed.

Johnson, J., did not participate in the foregoing decision.