Cashman v. Lewis

222 P. 411 | Ariz. | 1924

ROSS, J.

— The appellees Cal. J. Lewis and Chloride Store Company, as creditors of the Colorado River Oil & Gras Company, sued said company and attached as its property one drilling rig, one rotary triplex pump, one gas engine, and one Bain wagon. The appellant, Cashman, claiming said personal property as Ms, made the affidavit and gave the bond required by the provisions of title 6, relating to the “Trial of Right of Personal Property” (paragraphs 1648-1672, Civil Code 1913), whereupon said property was delivered by the sheriff to appellant, Cashman. Thereafter, under the directions of the court, issues in writing were made up as provided in the statute, and in due course a trial before the court without a jury was had, which resulted in a verdict and judgment in favor of appellees.

The appeal raises the question of the sufficiency of the evidence to support the judgment. The evidence was uncontradicted that the property was formerly owned by appellant, who resides in Nevada, that on or about December 8,1919, he delivered said property to the Colorado River Oil & Cas Company under a conditional contract of sale, and that said company very soon thereafter removed the same to Mohave county, Arizona, to be used in drilling a well.

The court made findings of fact, among others that the conditional contract of sale was never placed of record in Mohave county, that, at the time of the levy of the attachment, to wit, October 1; 1920, the plaintiffs had no knowledge or notice that appellant, Cash-man had any claim against the property, and had no knowledge or notice of said conditional sale contract.

The appellant argues that these findings are against the evidence, and are not supported by the evidence, hut wherein he fails to indicate. The fact that there was indorsed upon the conditional contract of sale, under the signature of the “secretary and authorized agent” of the Colorado Oil & Gras Company, a statement to the effect that the company has been unable to pay for the property and therefore surrendered all rights therein to the appellant was no more notice to the. attaching creditors than the conditional contract of sale, since it was not placed of record, and since there is no evidence that the appellees had actual notice of such surreuder or of the conditional sale contract. The fact that the appellees had knowledge that the property was originally bought from appellant would not in itself be any notice it was sold under a conditional contract, as contended by appellant. An inspection of the record leads to the conclusion that there is ample evidence to sustain the court’s finding that the appellees had no actual notice of appellant’s claim, and, since the instrument evidencing his so.-called title was not recorded, there was no constructive notice. It follows that the contract under which the appellant claimed the property was void as to the attaching creditors, under the provisions of section 5, chapter 40, Laws of 1919, which reads as follows:

“(Conditional Sales Void as to Certain Persons.) Every provision in a conditional sale reserving property in the seller, shall be void as to any purchaser from or creditor of the buyer who, without notice of such provision, purchases the goods or acquires by attachment or levy a lien upon them, before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale. ’ ’

Almost a year elapsed from the date of sale and delivery of property before it was attached, and all that time, according to the evidence, it was in the actual or apparent possession of the purchaser. The conditional contract of sale not having been recorded within ten days after its making, or at all, and the appellees having no actual notice of the existence of such contract, their attachment lien, under the statute, should prevail over appellant’s claim.

The judgment of the lower court is affirmed.

McALISTEE, C. J., and LYMAN, J., concur.